Decisions of Interest

FMLA Statute of Limitations Not Extended By Certification Requirement

An employer's failure to seek a supplementary medical examination, after questioning an employee's certification of inability to work, is not a “willful” action for purposes of extending the FMLA statute of limitations from 2 to 3 years. Porter v. New York University School of Law, 2003 WL 22004841 (S.D.N.Y. 8/25/03) (Griesa, J.).

In seeking leave under the FMLA, the employee submitted a physician's certification to substantiate his alleged inability to perform the essential functions of his job. The certification was repudiated by a report of the employer's physician. Without scheduling any further examinations, the employer denied FMLA leave to the employee. More than 2 years later, the employee brought an unlawful termination suit contending that the employer's failure to schedule a third examination to resolve the conflicting reports of the two physicians was a willful violation of the FMLA. The court rejected the employee's argument and ruled that the FMLA calls for a third medical opinion to resolve a dispute between the employer and employee only upon the discretion of the employer. Citing to the language of the statute, the court noted that the requirement of additional medical documentation is permissive, not mandatory. Accordingly, plaintiff's claims were subject to the 2-year statute of limitations, not the 3 years allowed for willful violations.

(No attorneys listed.)

Penalties Imposed for Delay in Providing ERISA Information

Individual trustees of an ERISA plan are subject to monetary penalties for failing to provide a retired member with relevant plan information. Cherry v. Toussaint, 2003 WL 21767759 (S.D.N.Y. 7/30/03) (Buchwald, J.)

Upon his retirement, plaintiff requested financial information from the trustees of his union retirement plan. Plaintiff sought the information after the union had determined that he did not qualify for a lump sum payout of his pension. The plan administrators produced some of the financial documents, but only after plaintiff had made repeated requests and months after his initial request. Recognizing that a plan administrator is statutorily required to produce certain plan information within 30 days of a written request, the court imposed penalties upon the individual trustees for their failure to provide such information in a timely manner. Although the court ruled that there was no bad faith or intentional misconduct on the part of the administrators, penalties were justified due to the length of the delay, the number of requests made, the importance of the documents withheld, and the prejudice to the participant behavior. The court determined that a penalty of $25 per day to be appropriate since the statutory penalties under ERISA were designed more to punish irresponsible administrators rather than to compensate a pensioner for an actual loss.

For plaintiff, Arnold Cherry, pro se.

For defendant, Kennedy, Schwartz, & Cure, P.C., by Stuart Lichen.

Spoliation of Records: Adverse Inference Warranted

Sanctions are imposed where an employer destroyed relevant documents that should have been produced to former employees in their age discrimination action against the employer. Golia v. Leslie Fay Company, Inc., 2003 WL 21878788 (S.D.N.Y. 8/7/03) (Lynch, J.)

The employer in this case asserted the defense of poor performance as the legitimate reason for the employees' termination. However, during discovery, it failed to produce the former employees' performance notes and work assignment data that had been maintained by the employees' supervisor. Almost 2 years after plaintiffs' request for the relevant documents, the supervisor, upon being terminated herself, destroyed all of the documents. Finding that the employer had acted grossly negligent in failing to preserve the destroyed documents, the court ruled that sanctions were warranted for spoliation of relevant evidence. The court rejected the plaintiff's request for striking the defendant's answer and rewarding the plaintiff with summary judgment. Rather, the court ruled that the most appropriate sanction was to allow the jury to draw an adverse inference against the employer after hearing evidence of the destruction of the documents. In chastising the defendants' failure to abide by its discovery obligations, the court stated that it would give the jury a strongly worded instruction that the destroyed documents contained evidence unfavorable to defendant and that the jury could apply such inference against the defendant in determining the merits of the case.

For plaintiff, Trief & Olk, by Barbara Olk.

For defendant, McDermott, Will & Emery, by Joel E. Cohen.

Religious/Ethnic Remarks Establish Hostile Work Environment

Remarks made on a weekly basis by a supervisor who referred to an employee's religion and ethnicity were sufficient to state a hostile work environment claim made by that employee. Domb v. Metropolitan Life, 2003 WL 21878784(S.D.N.Y. 8/7/03) (Lynch J.). Plaintiff here alleged that her supervisor constantly made remarks that referred to her as a “Jew,” or a “smart Hebe,” or the “Jewish rep.” The employer moved for summary judgment arguing that such comments were merely rude and were not directed specifically at plaintiff. The court, however, denied the summary judgment motion, and ruled that there was sufficient evidence to indicate that the remarks were not isolated and that the comments were intended to humiliate her. The court relied on a co-worker's affidavit that corroborated the regularity of the supervisor's comments and the employer's own internal investigation that concluded the supervisor used ethnicity as the subject of jokes in the office.

For plaintiff, Peter G. Eikenberry.

For defendant, Proskauer Rose LLP, by Joseph C. O'Keefe.

Arbitrator May Not Be Deposed

An arbitrator may not be deposed on the subject of his decision-making process in the absence of clear evidence of impropriety, rules the Second Circuit. Hoeft v. MVL Group, 343 F.3d 57 (2d Cir. 9/3/03) (Parker, Raggi and Goldberg, Cir. Judges).

The district court in this case allowed the losing party to an arbitration to depose the arbitrator on the subject of his decision-making process in aid of the parties' claim that the arbitrator manifestly disregarded the law. The Second Circuit found this to be error. The court reasoned that a claim of manifest disregard by necessity involves a subjective component relating to the arbitrator's thought processes, the arbitrator's knowledge of the law, and his application of the law to the dispute. “Permitting depositions of arbitrators regarding their mental processes would make arbitration only the starting point in the dispute resolution process and deprive arbitration awards of the last word on their authors' intentions.” The court, in contrast, recognized that arbitrators could be deposed where, for example, a clear case for bias or prejudgment has been put forth. The court concluded that if a party wants to know the arbitrator's thought processes that party should contract for a reasoned award that would set forth such reasoning.

For petitioners/appellants, O'Melveny & Myers, by Louis B. Kimmelman, Esq., New York.

For respondents/appellees, Pullman & Comley, by James T. Shearin, Esq., Bridgeport, CT.

Evidence Must Support Arbitration Award's Liability Theory

An arbitration award that failed to justify its conclusion that an employee was liable under respondeat superior was found to be void. Hardy v. Walsh Manning Securities, L.L.C., 341 F.3d 126 (2d Cir. 8/19/03) (Straub, Pooler, Circuit Judges, Hurd, D.J., by designation).

The district court confirmed the award on the ground that it could be read to hold that the employee is liable “based on his own conduct.” The Second Circuit reversed, reasoning that the award failed to cite any evidence in support of its respondeat superior theory of liability: “There may indeed be more than enough evidence in the record to find that [the employee] should have been found primarily liable. But that is not what 'the arbitrator's judgment' is in the instant case. The arbitrator's judgment is that [the employee] was liable 'upon the principles of respondeat superior,' and no one points us to any evidence in the record that provides a colorable justification for this conclusion.”

For Petitioner-Appellee, Kaufmann, Feiner, Yamin, Gildin & Robbins, LLP, by Daniel Gildin, David W. Oppenheimer, New York.

For Respondent-Appellant, Ruskin Moscou Faltischek, P.C., by Joseph R. Harbeson, Douglass A. Cooper, Uniondale.

Pay Claims Not Subject to Continuing Violation Doctrine

An employee cannot avail himself/herself of the continuing violation doctrine to render timely otherwise stale disparate pay claims. Blake v. Bronx Lebanon Hosp. Ctr., 2003 WL 21910867 (S.D.N.Y. 8/11/03) (Motley, D.J.).

The non-Caucasian employee claimed that he was paid less and received less impressive job titles than similarly situated white managerial employees over a period of several years. The applicable statute of limitations barred claims older than 3 years. The employee asserted that the continuing violations doctrine applied and tolled the limitations period. Judge Motley applied the test from the recent Supreme Court case Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which identified termination, failure to promote, denial of transfer and refusal to hire as discrete acts not subject to the continuing violation doctrine. The employee here argued that his disparate pay claims were part of a “pattern and practice,” and that pattern and practice claims are subject to the continuing violations doctrine. The court rejected the employee's argument, reasoning that simply using the words “pattern and practice” in the complaint does not establish a pattern and practice claim, which ordinarily requires a class action.

For Plaintiff, Law Offices of Lee Nuwesra, by Lee Nuwesra and Jerald G. Abrams, New York.

For Defendant, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, by Ricki E. Roer, New York.

No Employment Relationship Where Putative Employer Does Not Compensate

An umpire was found to be an independent contractor rather than an employee of a collegiate organization that controlled his schedule but did not pay him. Wadler v. Eastern Collegiate Athletic Conference, 2003 WL 21961119 (S.D.N.Y. 8/14/03) (Martin, D.J.)

The plaintiff alleged that a collegiate organization (ECAC) discriminated against him on the basis of race by reducing his schedule of games, not assigning him to playoff games, and ultimately removing him from the list of available umpires. The ECAC was solely responsible for determining whether the plaintiff was employed as an umpire, evaluated his performance, regulated his uniform, and required him to display his affiliation with the ECAC by wearing a logo. The ECAC also exerted control of the payment and reimbursement of umpires through negotiation with its union and review of reimbursement requests.

Nevertheless, the plaintiff was not an employee of the ECAC because its control of a putative employee's work “in the absence of compensation by the ECAC, is not sufficient to render it an employer under Title VII or the NYHRL.”

For Plaintiff, Galgano & Sullivan, by Kieran J. Sullivan, White Plains.

For Defendant ECAC, Patrick T. Burke, Suffern.

For Defendant Nick Zibelli, J. Spencer Tobin, Needham, MA.

Employment At Will Presumed

An employee could not establish a breach of contract claim by overcoming the presumption of employment at will where the employer did not have a written policy limiting the employer's right of termination. Stamelman v. Fleishman-Hillard, Inc., 2003 WL 21782645 (S.D.N.Y. 7/31/03) (Scheindlin, D.J.)

The employee's terms and conditions of employment were contained in an offer letter that lacked an express term of fixed employment. Accordingly, the at-will presumption applied. The employee sought to rebut that presumption pursuant to the test enunciated by the New York Court of Appeals in Weiner v. McGraw-Hill, 57 N.Y.2d 458. Weiner requires proof that an employee 1) was orally assured that the prospective employer terminates only for cause; 2) signed an employment application that incorporated that oral assurance; 3) rejected other offers in reliance on the assurance; and 4) was instructed to proceed in strict compliance with the express employer policy in the personnel handbook that employees be terminated solely for just cause.

The employee's complaint failed to establish that there was an express written policy limiting the employer's right of termination incorporated into his employment contract, and therefore failed to overcome the at-will presumption.

For Plaintiff, Law Offices of Neal Brickman, by Ramon A. Pagan, New York.

For Defendant, Littler Mendelson,, P.C., by A. Michael Weber, Christina L. Feege, New York.

FMLA Statute of Limitations Not Extended By Certification Requirement

An employer's failure to seek a supplementary medical examination, after questioning an employee's certification of inability to work, is not a “willful” action for purposes of extending the FMLA statute of limitations from 2 to 3 years. Porter v. New York University School of Law, 2003 WL 22004841 (S.D.N.Y. 8/25/03) (Griesa, J.).

In seeking leave under the FMLA, the employee submitted a physician's certification to substantiate his alleged inability to perform the essential functions of his job. The certification was repudiated by a report of the employer's physician. Without scheduling any further examinations, the employer denied FMLA leave to the employee. More than 2 years later, the employee brought an unlawful termination suit contending that the employer's failure to schedule a third examination to resolve the conflicting reports of the two physicians was a willful violation of the FMLA. The court rejected the employee's argument and ruled that the FMLA calls for a third medical opinion to resolve a dispute between the employer and employee only upon the discretion of the employer. Citing to the language of the statute, the court noted that the requirement of additional medical documentation is permissive, not mandatory. Accordingly, plaintiff's claims were subject to the 2-year statute of limitations, not the 3 years allowed for willful violations.

(No attorneys listed.)

Penalties Imposed for Delay in Providing ERISA Information

Individual trustees of an ERISA plan are subject to monetary penalties for failing to provide a retired member with relevant plan information. Cherry v. Toussaint, 2003 WL 21767759 (S.D.N.Y. 7/30/03) (Buchwald, J.)

Upon his retirement, plaintiff requested financial information from the trustees of his union retirement plan. Plaintiff sought the information after the union had determined that he did not qualify for a lump sum payout of his pension. The plan administrators produced some of the financial documents, but only after plaintiff had made repeated requests and months after his initial request. Recognizing that a plan administrator is statutorily required to produce certain plan information within 30 days of a written request, the court imposed penalties upon the individual trustees for their failure to provide such information in a timely manner. Although the court ruled that there was no bad faith or intentional misconduct on the part of the administrators, penalties were justified due to the length of the delay, the number of requests made, the importance of the documents withheld, and the prejudice to the participant behavior. The court determined that a penalty of $25 per day to be appropriate since the statutory penalties under ERISA were designed more to punish irresponsible administrators rather than to compensate a pensioner for an actual loss.

For plaintiff, Arnold Cherry, pro se.

For defendant, Kennedy, Schwartz, & Cure, P.C., by Stuart Lichen.

Spoliation of Records: Adverse Inference Warranted

Sanctions are imposed where an employer destroyed relevant documents that should have been produced to former employees in their age discrimination action against the employer. Golia v. Leslie Fay Company, Inc., 2003 WL 21878788 (S.D.N.Y. 8/7/03) (Lynch, J.)

The employer in this case asserted the defense of poor performance as the legitimate reason for the employees' termination. However, during discovery, it failed to produce the former employees' performance notes and work assignment data that had been maintained by the employees' supervisor. Almost 2 years after plaintiffs' request for the relevant documents, the supervisor, upon being terminated herself, destroyed all of the documents. Finding that the employer had acted grossly negligent in failing to preserve the destroyed documents, the court ruled that sanctions were warranted for spoliation of relevant evidence. The court rejected the plaintiff's request for striking the defendant's answer and rewarding the plaintiff with summary judgment. Rather, the court ruled that the most appropriate sanction was to allow the jury to draw an adverse inference against the employer after hearing evidence of the destruction of the documents. In chastising the defendants' failure to abide by its discovery obligations, the court stated that it would give the jury a strongly worded instruction that the destroyed documents contained evidence unfavorable to defendant and that the jury could apply such inference against the defendant in determining the merits of the case.

For plaintiff, Trief & Olk, by Barbara Olk.

For defendant, McDermott, Will & Emery, by Joel E. Cohen.

Religious/Ethnic Remarks Establish Hostile Work Environment

Remarks made on a weekly basis by a supervisor who referred to an employee's religion and ethnicity were sufficient to state a hostile work environment claim made by that employee. Domb v. Metropolitan Life, 2003 WL 21878784(S.D.N.Y. 8/7/03) (Lynch J.). Plaintiff here alleged that her supervisor constantly made remarks that referred to her as a “Jew,” or a “smart Hebe,” or the “Jewish rep.” The employer moved for summary judgment arguing that such comments were merely rude and were not directed specifically at plaintiff. The court, however, denied the summary judgment motion, and ruled that there was sufficient evidence to indicate that the remarks were not isolated and that the comments were intended to humiliate her. The court relied on a co-worker's affidavit that corroborated the regularity of the supervisor's comments and the employer's own internal investigation that concluded the supervisor used ethnicity as the subject of jokes in the office.

For plaintiff, Peter G. Eikenberry.

For defendant, Proskauer Rose LLP, by Joseph C. O'Keefe.

Arbitrator May Not Be Deposed

An arbitrator may not be deposed on the subject of his decision-making process in the absence of clear evidence of impropriety, rules the Second Circuit. Hoeft v. MVL Group , 343 F.3d 57 (2d Cir. 9/3/03) (Parker, Raggi and Goldberg, Cir. Judges).

The district court in this case allowed the losing party to an arbitration to depose the arbitrator on the subject of his decision-making process in aid of the parties' claim that the arbitrator manifestly disregarded the law. The Second Circuit found this to be error. The court reasoned that a claim of manifest disregard by necessity involves a subjective component relating to the arbitrator's thought processes, the arbitrator's knowledge of the law, and his application of the law to the dispute. “Permitting depositions of arbitrators regarding their mental processes would make arbitration only the starting point in the dispute resolution process and deprive arbitration awards of the last word on their authors' intentions.” The court, in contrast, recognized that arbitrators could be deposed where, for example, a clear case for bias or prejudgment has been put forth. The court concluded that if a party wants to know the arbitrator's thought processes that party should contract for a reasoned award that would set forth such reasoning.

For petitioners/appellants, O'Melveny & Myers, by Louis B. Kimmelman, Esq., New York.

For respondents/appellees, Pullman & Comley, by James T. Shearin, Esq., Bridgeport, CT.

Evidence Must Support Arbitration Award's Liability Theory

An arbitration award that failed to justify its conclusion that an employee was liable under respondeat superior was found to be void. Hardy v. Walsh Manning Securities, L.L.C. , 341 F.3d 126 (2d Cir. 8/19/03) (Straub, Pooler, Circuit Judges, Hurd, D.J., by designation).

The district court confirmed the award on the ground that it could be read to hold that the employee is liable “based on his own conduct.” The Second Circuit reversed, reasoning that the award failed to cite any evidence in support of its respondeat superior theory of liability: “There may indeed be more than enough evidence in the record to find that [the employee] should have been found primarily liable. But that is not what 'the arbitrator's judgment' is in the instant case. The arbitrator's judgment is that [the employee] was liable 'upon the principles of respondeat superior,' and no one points us to any evidence in the record that provides a colorable justification for this conclusion.”

For Petitioner-Appellee, Kaufmann, Feiner, Yamin, Gildin & Robbins, LLP, by Daniel Gildin, David W. Oppenheimer, New York.

For Respondent-Appellant, Ruskin Moscou Faltischek, P.C., by Joseph R. Harbeson, Douglass A. Cooper, Uniondale.

Pay Claims Not Subject to Continuing Violation Doctrine

An employee cannot avail himself/herself of the continuing violation doctrine to render timely otherwise stale disparate pay claims. Blake v. Bronx Lebanon Hosp. Ctr., 2003 WL 21910867 (S.D.N.Y. 8/11/03) (Motley, D.J.).

The non-Caucasian employee claimed that he was paid less and received less impressive job titles than similarly situated white managerial employees over a period of several years. The applicable statute of limitations barred claims older than 3 years. The employee asserted that the continuing violations doctrine applied and tolled the limitations period. Judge Motley applied the test from the recent Supreme Court case Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101 (2002), which identified termination, failure to promote, denial of transfer and refusal to hire as discrete acts not subject to the continuing violation doctrine. The employee here argued that his disparate pay claims were part of a “pattern and practice,” and that pattern and practice claims are subject to the continuing violations doctrine. The court rejected the employee's argument, reasoning that simply using the words “pattern and practice” in the complaint does not establish a pattern and practice claim, which ordinarily requires a class action.

For Plaintiff, Law Offices of Lee Nuwesra, by Lee Nuwesra and Jerald G. Abrams, New York.

For Defendant, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, by Ricki E. Roer, New York.

No Employment Relationship Where Putative Employer Does Not Compensate

An umpire was found to be an independent contractor rather than an employee of a collegiate organization that controlled his schedule but did not pay him. Wadler v. Eastern Collegiate Athletic Conference, 2003 WL 21961119 (S.D.N.Y. 8/14/03) (Martin, D.J.)

The plaintiff alleged that a collegiate organization (ECAC) discriminated against him on the basis of race by reducing his schedule of games, not assigning him to playoff games, and ultimately removing him from the list of available umpires. The ECAC was solely responsible for determining whether the plaintiff was employed as an umpire, evaluated his performance, regulated his uniform, and required him to display his affiliation with the ECAC by wearing a logo. The ECAC also exerted control of the payment and reimbursement of umpires through negotiation with its union and review of reimbursement requests.

Nevertheless, the plaintiff was not an employee of the ECAC because its control of a putative employee's work “in the absence of compensation by the ECAC, is not sufficient to render it an employer under Title VII or the NYHRL.”

For Plaintiff, Galgano & Sullivan, by Kieran J. Sullivan, White Plains.

For Defendant ECAC, Patrick T. Burke, Suffern.

For Defendant Nick Zibelli, J. Spencer Tobin, Needham, MA.

Employment At Will Presumed

An employee could not establish a breach of contract claim by overcoming the presumption of employment at will where the employer did not have a written policy limiting the employer's right of termination. Stamelman v. Fleishman-Hillard, Inc., 2003 WL 21782645 (S.D.N.Y. 7/31/03) (Scheindlin, D.J.)

The employee's terms and conditions of employment were contained in an offer letter that lacked an express term of fixed employment. Accordingly, the at-will presumption applied. The employee sought to rebut that presumption pursuant to the test enunciated by the New York Court of Appeals in Weiner v. McGraw-Hill , 57 N.Y.2d 458. Weiner requires proof that an employee 1) was orally assured that the prospective employer terminates only for cause; 2) signed an employment application that incorporated that oral assurance; 3) rejected other offers in reliance on the assurance; and 4) was instructed to proceed in strict compliance with the express employer policy in the personnel handbook that employees be terminated solely for just cause.

The employee's complaint failed to establish that there was an express written policy limiting the employer's right of termination incorporated into his employment contract, and therefore failed to overcome the at-will presumption.

For Plaintiff, Law Offices of Neal Brickman, by Ramon A. Pagan, New York.

For Defendant, Littler Mendelson,, P.C., by A. Michael Weber, Christina L. Feege, New York.