National Litigation Hotline

In response to Kodak's motion for summary judgment, the court observed that it was a close question as to whether the pictures created an intolerable work environment. However, the court found that Kodak was not negligent in responding to Ms. Czemske's complaint. The court observed that Ms. Czemske failed to report the 1998 incident, thereby not triggering any obligation of Kodak's at that time. Moreover, the court held that Kodak's actions in April 2000 were 'reasonable, prompt and effective,' as firing the co-worker 'was undeniably the most effective means of preventing further harassment.'

Employee with Tourette's Syndrome Not Qualified under the ADA

A federal district court judge for the Southern District of Georgia has held that an employee with Tourette's Syndrome, which compelled him to exclaim obscene and racist statements, was not a qualified individual under the ADA. Ray v. Kroger Co., 2003 WL 21251421 (S.D. Ga. May 27, 2003).

Charles Ray was employed as a clerk in the frozen food section of Kroger, where his duties included customer service, and contact with customers, vendors, employees and contractors. Kroger was aware of Ray's condition when he was hired. When compelled to make an exclamation at work, he would show a card to customers explaining his condition. In November 2000, Ray's condition led him to make a racial slur toward another Kroger employee. He asked that other employees be told about his condition, and to be transferred to the night shift. Another incident occurred after the transfer, leading to a complaint by a customer. In June 2001, Ray again made a racial slur in front of an African-American contractor. He was suspended the following day and ultimately terminated. Ray later brought suit under the ADA claiming that Kroger discriminated against him on the basis of his disability, to which Kroger responded with a motion for summary judgment.

The court held that while Ray was disabled, he was not a qualified individual for purposes of the ADA. Ray's job required him to engage in regular interaction with customers, but he could not perform his responsibilities without offending customers (ie, his condition compelled him to blurt out obscenities and racial slurs, which by their nature are offensive). As he was unable to perform his job duties without these outbursts, Ray could not be considered otherwise qualified for the position. Further, the court held that even if Ray had been found otherwise qualified, Kroger had a legitimate basis for terminating him, because a termination for misconduct does not violate the ADA, even if it is related to a disability.

Playing 'Godfather' Theme During Meeting: Termination Justified?

The Third Circuit Court of Appeals has upheld the termination of an employee who referred to his gun and played the theme from 'The Godfather' during a meeting with employees. Carilli v. Mutual of Omaha Ins. Co., 2003 WL 21299597 (3rd Cir. June 6, 2003).

James Carilli was the general manager of the Pittsburgh office of Mutual of Omaha Insurance Co. He had a reputation for creating hostility in his office, and for negative interactions with his subordinates. In 1999, management visited the Pittsburgh office to investigate complaints about Carilli's 'volatile conduct.' Subsequently, an employee and two non-employee agents complained about Carilli to the company's home office. They claimed that during a meeting, Carilli said he had a gun, called it his 'equalizer,' alluded to an association with the mafia, and played the theme to 'The Godfather.' Separately, another employee called the home office, claiming he had heard Carilli say that, 'If they are going to fire me, I'm going to take my gun and I'm taking a few people out.' In response, the home office formed a 'violence committee,' which determined that Carilli was to be fired immediately. Carilli brought suit, claiming discrimination in violation of the ADEA and Title VII (ie, as an Italian and a Roman Catholic). The trial court granted summary judgment to the employer.

The Third Circuit affirmed, noting that the key issue was whether the employer was motivated by a discriminatory animus, not simply that the employer's decision was wrong or mistaken. The court held that Carilli failed to show that the violence committee did not receive reports of his violent threats, nor that it did not rely on them in deciding he should be terminated. At most, the court observed, the committee failed to permit Carilli the chance to present evidence to rebut the allegations against him, but this did not demonstrate that its actions were discriminatory or pretextual.

Absenteeism and Tardiness Are Reason for Employee's Termination

The First Circuit has upheld an employee's termination because of his absenteeism and tardiness, holding that they were not a pretext for discrimination. Benoit v. Technical Mfg. Corp., 2003 WL 21321468 (1st Cir. June 9, 2003).

Joseph Benoit, who was black and of Haitian national origin, was employed by Technical Manufacturing Corp. (TMC). Benoit was considered a 'very talented employee' and 'capable of very good work.' However, between 1996 and 1998, he continually arrived at work late and left early, without appreciating that doing so had a disruptive effect. Ultimately, his tardiness led his termination in 1998. Benoit brought suit in the federal district court for the district of Massachusetts, claiming discrimination based upon, inter alia, race, color, national origin, Title VII, and Massachusetts law. The district court granted summary judgment to TMC.

The First Circuit affirmed. In response to the Title VII claims, the court held that 'Benoit ha[d] not provided sufficient evidence for a jury to disbelieve TMC's stated reasons for termination, let alone that those reasons masked racial discrimination.' Notably, Benoit failed to demonstrate that any other similarly situated employee was treated differently than he was. In fact, the record showed that seven other employees were terminated between 1995 and 1999 for excessive absenteeism, and five of them were white. Additionally, Benoit's employment records indicated he had some conflict with his supervisors.

The First Circuit also rejected Benoit's claim for retaliation, observing that he had not been terminated until more than a year after he complained to management about race and national origin discrimination. Consequently, there was no nexus found between his complaint and his firing.

Attorneys' Fees Assessed Against EEOC Vacated and Suit Reinstated

The Ninth Circuit has reinstated a sexual harassment and pregnancy discrimination suit brought by the EEOC on behalf of female employees against a law firm, and also vacated an award of attorneys' fees assessed against the EEOC. EEOC v. Robert L. Reeves and Assocs., 2003 WL 21480317 (9th Cir. June 20, 2003).

The EEOC filed suit against Robert L. Reeves and Associates, a Los Angeles law firm, in September 2000. The suit alleged that Reeves had violated Title VII by sexually harassing nine of twelve female employees of the firm, and firing three additional women who were pregnant. Reeves moved for summary judgment, which was granted by the district court in May 2002. The district court assessed $363,075 in attorneys' fees against the EEOC, on the grounds that the EEOC had frivolously pursued a meritless case, and that the EEOC's conduct was 'heavy handed and out of bounds.'

The Ninth Circuit reversed and remanded. It determined that the EEOC had presented 'sufficient, specific evidence' to show that Reeves' stated reason for terminating one of the pregnant employees was pretextual, citing the employee's own statements and those of her co-workers. Further, with regard to the hostile work environment claims, the court noted that 'a reasonable woman in the claimants' positions could have believed that Reeves' sexual jokes, comments, leering and offensive touching were sufficiently severe or pervasive to alter the conditions of their employment.' The court observed that Reeves' conduct was 'widely known' throughout the law firm, that the claimants felt uncomfortable around him and sought to avoid his company, and some even left the firm to do so. When coupled with his position within the firm as partner with final decision-making authority, the court held that this was 'sufficient to permit a reasonable juror to conclude that Reeves created an abusive working environment.'

Complaint Mailed from 450 Miles Away on Day Before Statutory Filing Deadline

The Eighth Circuit has affirmed the dismissal of ADEA and constructive discharge claims by an employee as time barred, where the employee's counsel mailed the complaint from 450 miles away one day before the filing deadline. Hallgren v. United Stated Dep't of Energy, 2003 WL 21347126 (8th Cir. June 11, 2003).

Herb Hallgren, a 56-year-old, sought to sue his employer, the Department of Energy (DOE) under the ADEA and Nebraska law for failure to transfer him to a location in Colorado. Hallgren filed an administrative complaint alleging age discrimination with the DOE, a claim that was found to have no merit in June 2001. On September 12, 2001, the day before the statute of limitations was to expire, Hallgren's counsel mailed the complaint from his office in Scottsbluff, NE, to the federal district court in Omaha, 450 miles away. The complaint was received and filed by the court on September 18, 2001, 5 days after the statutory deadline. DOE moved to dismiss the complaint on statute of limitations grounds, which the district court granted.

The Eighth Circuit affirmed. It observed that under federal regulations, a claimant must file a complaint within 90 days of receipt of notice of final agency action. As Hallgren received DOE's decision on June 15, 2001, he was obligated to file by September 13, 2001, which he failed to do. The court rejected Hallgren's argument that equitable tolling should have saved his claims. It held that equitable tolling was appropriate only 'when circumstances that cause a plaintiff to miss a filing deadline are out of his hands.' Examples of such circumstances included: the receipt of inadequate notice; a pending motion to appoint counsel; receipt of misleading information from the court; or affirmative misconduct of the adverse party. None of these circumstances were found to exist. The court stated it was unreasonable to expect that a complaint mailed from 450 miles away would be filed within 24 hours of its mailing, as this 'provided no leeway for ordinary delays in the mail service.'

The National Litigation Hotline and Recent Developments from Around the States were prepared by Jason S. Aschenbrand, an associate in the labor and employment department of Winston & Strawn's New York offices.

Prompt Response to Complaint Bars Claim for Sexual Harassment

A federal district court for the Northern District of Illinois has held that Eastman Kodak Co.'s prompt response to an employee's complaint of sexual harassment barred her claim under Title VII. Czemske v. Eastman Kodak Co., 2003 WL 21418319 (N.D. Ill. June 16, 2003).

Christine Czemske was employed by Eastman Kodak Co. (Kodak) in several capacities between 1994 and 2000. In 1998, a co-worker superimposed Ms. Czemske's face over two images of nearly nude women in sexually suggestive poses. She did not report the incident at that time. In April 2000, the same co-worker displayed one of the images to two of Ms. Czemske's supervisors, and suggested that the image serve as her business card. Two weeks later, Ms. Czemske showed both images to one of the supervisors, who claimed he only recognized the sexual nature of the images when viewing them both simultaneously. Despite the supervisor's efforts to convince her otherwise, Ms. Czmeske opted to resign. The supervisor called the co-worker, determined that the images violated Kodak's zero tolerance policy, and fired him. Subsequently, Ms. Czemske sued under Title VII, alleging sexual harassment.

In response to Kodak's motion for summary judgment, the court observed that it was a close question as to whether the pictures created an intolerable work environment. However, the court found that Kodak was not negligent in responding to Ms. Czemske's complaint. The court observed that Ms. Czemske failed to report the 1998 incident, thereby not triggering any obligation of Kodak's at that time. Moreover, the court held that Kodak's actions in April 2000 were 'reasonable, prompt and effective,' as firing the co-worker 'was undeniably the most effective means of preventing further harassment.'

Employee with Tourette's Syndrome Not Qualified under the ADA

A federal district court judge for the Southern District of Georgia has held that an employee with Tourette's Syndrome, which compelled him to exclaim obscene and racist statements, was not a qualified individual under the ADA. Ray v. Kroger Co., 2003 WL 21251421 (S.D. Ga. May 27, 2003).

Charles Ray was employed as a clerk in the frozen food section of Kroger, where his duties included customer service, and contact with customers, vendors, employees and contractors. Kroger was aware of Ray's condition when he was hired. When compelled to make an exclamation at work, he would show a card to customers explaining his condition. In November 2000, Ray's condition led him to make a racial slur toward another Kroger employee. He asked that other employees be told about his condition, and to be transferred to the night shift. Another incident occurred after the transfer, leading to a complaint by a customer. In June 2001, Ray again made a racial slur in front of an African-American contractor. He was suspended the following day and ultimately terminated. Ray later brought suit under the ADA claiming that Kroger discriminated against him on the basis of his disability, to which Kroger responded with a motion for summary judgment.

The court held that while Ray was disabled, he was not a qualified individual for purposes of the ADA. Ray's job required him to engage in regular interaction with customers, but he could not perform his responsibilities without offending customers (ie, his condition compelled him to blurt out obscenities and racial slurs, which by their nature are offensive). As he was unable to perform his job duties without these outbursts, Ray could not be considered otherwise qualified for the position. Further, the court held that even if Ray had been found otherwise qualified, Kroger had a legitimate basis for terminating him, because a termination for misconduct does not violate the ADA, even if it is related to a disability.

Playing 'Godfather' Theme During Meeting: Termination Justified?

The Third Circuit Court of Appeals has upheld the termination of an employee who referred to his gun and played the theme from 'The Godfather' during a meeting with employees. Carilli v. Mutual of Omaha Ins. Co., 2003 WL 21299597 (3rd Cir. June 6, 2003).

James Carilli was the general manager of the Pittsburgh office of Mutual of Omaha Insurance Co. He had a reputation for creating hostility in his office, and for negative interactions with his subordinates. In 1999, management visited the Pittsburgh office to investigate complaints about Carilli's 'volatile conduct.' Subsequently, an employee and two non-employee agents complained about Carilli to the company's home office. They claimed that during a meeting, Carilli said he had a gun, called it his 'equalizer,' alluded to an association with the mafia, and played the theme to 'The Godfather.' Separately, another employee called the home office, claiming he had heard Carilli say that, 'If they are going to fire me, I'm going to take my gun and I'm taking a few people out.' In response, the home office formed a 'violence committee,' which determined that Carilli was to be fired immediately. Carilli brought suit, claiming discrimination in violation of the ADEA and Title VII (ie, as an Italian and a Roman Catholic). The trial court granted summary judgment to the employer.

The Third Circuit affirmed, noting that the key issue was whether the employer was motivated by a discriminatory animus, not simply that the employer's decision was wrong or mistaken. The court held that Carilli failed to show that the violence committee did not receive reports of his violent threats, nor that it did not rely on them in deciding he should be terminated. At most, the court observed, the committee failed to permit Carilli the chance to present evidence to rebut the allegations against him, but this did not demonstrate that its actions were discriminatory or pretextual.

Absenteeism and Tardiness Are Reason for Employee's Termination

The First Circuit has upheld an employee's termination because of his absenteeism and tardiness, holding that they were not a pretext for discrimination. Benoit v. Technical Mfg. Corp., 2003 WL 21321468 (1st Cir. June 9, 2003).

Joseph Benoit, who was black and of Haitian national origin, was employed by Technical Manufacturing Corp. (TMC). Benoit was considered a 'very talented employee' and 'capable of very good work.' However, between 1996 and 1998, he continually arrived at work late and left early, without appreciating that doing so had a disruptive effect. Ultimately, his tardiness led his termination in 1998. Benoit brought suit in the federal district court for the district of Massachusetts, claiming discrimination based upon, inter alia, race, color, national origin, Title VII, and Massachusetts law. The district court granted summary judgment to TMC.

The First Circuit affirmed. In response to the Title VII claims, the court held that 'Benoit ha[d] not provided sufficient evidence for a jury to disbelieve TMC's stated reasons for termination, let alone that those reasons masked racial discrimination.' Notably, Benoit failed to demonstrate that any other similarly situated employee was treated differently than he was. In fact, the record showed that seven other employees were terminated between 1995 and 1999 for excessive absenteeism, and five of them were white. Additionally, Benoit's employment records indicated he had some conflict with his supervisors.

The First Circuit also rejected Benoit's claim for retaliation, observing that he had not been terminated until more than a year after he complained to management about race and national origin discrimination. Consequently, there was no nexus found between his complaint and his firing.

Attorneys' Fees Assessed Against EEOC Vacated and Suit Reinstated

The Ninth Circuit has reinstated a sexual harassment and pregnancy discrimination suit brought by the EEOC on behalf of female employees against a law firm, and also vacated an award of attorneys' fees assessed against the EEOC. EEOC v. Robert L. Reeves and Assocs., 2003 WL 21480317 (9th Cir. June 20, 2003).

The EEOC filed suit against Robert L. Reeves and Associates, a Los Angeles law firm, in September 2000. The suit alleged that Reeves had violated Title VII by sexually harassing nine of twelve female employees of the firm, and firing three additional women who were pregnant. Reeves moved for summary judgment, which was granted by the district court in May 2002. The district court assessed $363,075 in attorneys' fees against the EEOC, on the grounds that the EEOC had frivolously pursued a meritless case, and that the EEOC's conduct was 'heavy handed and out of bounds.'

The Ninth Circuit reversed and remanded. It determined that the EEOC had presented 'sufficient, specific evidence' to show that Reeves' stated reason for terminating one of the pregnant employees was pretextual, citing the employee's own statements and those of her co-workers. Further, with regard to the hostile work environment claims, the court noted that 'a reasonable woman in the claimants' positions could have believed that Reeves' sexual jokes, comments, leering and offensive touching were sufficiently severe or pervasive to alter the conditions of their employment.' The court observed that Reeves' conduct was 'widely known' throughout the law firm, that the claimants felt uncomfortable around him and sought to avoid his company, and some even left the firm to do so. When coupled with his position within the firm as partner with final decision-making authority, the court held that this was 'sufficient to permit a reasonable juror to conclude that Reeves created an abusive working environment.'

Complaint Mailed from 450 Miles Away on Day Before Statutory Filing Deadline

The Eighth Circuit has affirmed the dismissal of ADEA and constructive discharge claims by an employee as time barred, where the employee's counsel mailed the complaint from 450 miles away one day before the filing deadline. Hallgren v. United Stated Dep't of Energy, 2003 WL 21347126 (8th Cir. June 11, 2003).

Herb Hallgren, a 56-year-old, sought to sue his employer, the Department of Energy (DOE) under the ADEA and Nebraska law for failure to transfer him to a location in Colorado. Hallgren filed an administrative complaint alleging age discrimination with the DOE, a claim that was found to have no merit in June 2001. On September 12, 2001, the day before the statute of limitations was to expire, Hallgren's counsel mailed the complaint from his office in Scottsbluff, NE, to the federal district court in Omaha, 450 miles away. The complaint was received and filed by the court on September 18, 2001, 5 days after the statutory deadline. DOE moved to dismiss the complaint on statute of limitations grounds, which the district court granted.

The Eighth Circuit affirmed. It observed that under federal regulations, a claimant must file a complaint within 90 days of receipt of notice of final agency action. As Hallgren received DOE's decision on June 15, 2001, he was obligated to file by September 13, 2001, which he failed to do. The court rejected Hallgren's argument that equitable tolling should have saved his claims. It held that equitable tolling was appropriate only 'when circumstances that cause a plaintiff to miss a filing deadline are out of his hands.' Examples of such circumstances included: the receipt of inadequate notice; a pending motion to appoint counsel; receipt of misleading information from the court; or affirmative misconduct of the adverse party. None of these circumstances were found to exist. The court stated it was unreasonable to expect that a complaint mailed from 450 miles away would be filed within 24 hours of its mailing, as this 'provided no leeway for ordinary delays in the mail service.'

The National Litigation Hotline and Recent Developments from Around the States were prepared by Jason S. Aschenbrand, an associate in the labor and employment department of Winston & Strawn's New York offices.