National Litigation Hotline

Diabetic Transferred Out of Job Has No Claim Under ADA

The U.S. Court of Appeals for the Sixth Circuit held that a diabetic forklift driver transferred from her position had no claim under the American with Disabilities Act. Mohr v. Hoover Co., 2004 WL 1098748, (6th Cir. May 14, 2004).

Plaintiff Lucille Mohr, who suffered from Type II diabetes, operated a forklift at least 25 feet in the air in order to retrieve medical supplies. In a review of medical records, the company medical director learned that Mohr suffered from the disease. After meeting with Ms. Mohr's personal physician, the medical director imposed an employment restriction barring use of the fork truck. Although Ms. Mohr submitted a letter from her personal physician attesting to her fitness for the job, the medical director did not change his position. Instead, Mohr was allowed to bid on other jobs, though she claimed a net loss of $25,000 given the new jobs had no overtime.

Ms. Mohr sued in federal court, arguing that her transfer violated the ADA as well as the sex discrimination provisions of Title VII of the Civil Rights Act of 1964. The lower court granted summary judgment to the company on all counts, and Ms. Mohr appealed to the Sixth Circuit. The court held that Ms. Mohr failed to prove that she was prevented from a class of jobs or a broad range of jobs in various classes. Instead, the court argued, she was unable to perform a “single, particular job” that is allowed by standards set by the Equal Employment Opportunity Commission.

Disciplined Corrections Officers Not Granted Injunction Against Employer

After being disciplined by the Connecticut Department of Corrections (DOC) for their involvement with a national motorcycle gang, five corrections officesr failed to convince a federal trial judge to enjoin the employer from executing such discipline. Piscottano v. Murphy, 2004 WL 1093374 (D. Conn. May 14, 2004).

In August 2003, the state DOC began investigating allegations that the officers were members of the Outlaws, a rival group of the Hell's Angels that is reputedly a major drug trafficker whose members engage in violence. DOC interviewed the plaintiffs, who all had spotless disciplinary records. Three of the plaintiffs were found to have lied about their membership and were fired, while the other two admitted to attending certain Outlaw functions. These employees were issued “formal counselings” and were told not to repeat the behavior under the threat of further and more severe discipline. The plaintiffs sued under the Civil Rights Act of 1871 claiming violations of numerous constitutional rights, including freedom of association.

In order to obtain a preliminary injunction, the plaintiffs had to prove both irreparable harm without one, as well as either a likelihood of success on the merits or sufficiently serious questions on the merits making them fair ground for litigation. Regarding irreparable harm, the court noted that being prevented from attending social events is not the type of injury that gives rise to a presumption of such harm. The court also held that the plaintiffs failed on the merits because they could not show that their activities touched on matters of public concern as required under the First Amendment inquiry. The court found a rational basis for the DOC actions, including a desire not to have employees associate with a group that had been accused of criminal activity.

Federal Court Finds That Executive Terminated at 55 May Pursue Age Bias Claims

The U.S. District Court for the Northern District of Illinois held that a 51-year-old salesman who was one of eight employees fired during a reduction-in-force may pursue a bias claim under the Age Discrimination in Employment Act. Cornelius v. ADP Inc., 2004 WL 1102389 (N.D.Ill. May 03, 2004).

The plaintiff, Dale Cornelius, was a national account district manager selling ADP Inc. products and services to customers with 1000 to 5000 employees. The company decided in 2002 that it needed to reduce its work force. ADP argued that the plaintiff was fired because he was not meeting the employer's job expectations, having failed to meet his sales quota in either 2001 or 2002, the years prior to his termination. However, Cornelius disputed this evidence by pointing out that he had six times placed in the President's Club for exemplary sales results. Judge Joan Humphrey Lefkow agreed with the plaintiff and held that he may rely on evidence of above average performance for his 17 years in the job to establish a prima facie case of discrimination.

The plaintiff also showed that he was among the oldest of the terminated employees, three of whom were 40 or older. Four younger employees, three of whom were in their thirties, had similar job performances to the older employees, but were retained by the company.

Time Spent in Counseling to Minimize Work-Related Stress Is Compensable

The U.S. District Court for the Northern District of Illinois ruled that the Aurora police department violated the Fair Labor Standards Act when it refused to pay overtime to a former employee for time spent in counseling sessions required by the employer. Sehie v. Aurora, Ill., 2003 WL 21730120 (N.D.Ill. Jul 24, 2003).

The plaintiff, Kari Sehie, worked as a telecommunicator, answering phone calls from the public. After being instructed in December, 2000 to work an extra shift for a sick employee, Ms. Sehie protested, ultimately becoming upset and leaving work due to stress. Between leaving work on that day and returning the next day, the plaintiff spoke with a doctor and took medication for stress. The doctor determined that Ms. Sehie was fit for duty but that she should attend weekly psychotherapy sessions for 6 months. The company agreed to the suggestions, and Sehie attended 16 sessions between February 2001 and June 2002, all outside of her normal working hours. She worked 40 hours per week in addition to attending these sessions, but was never paid overtime. Ms. Sehie voluntarily resigned from the job in June.

The city argued that the compensability for such treatment is governed by a labor department regulation which states that time spent by an employee receiving medical attention at the employer's direction during normal working hours is compensable, but that time spent outside normal working hours is not. The court, however, was not persuaded, finding that an employee must be paid for all time spent in physical or mental exertion controlled or required by the employer and pursued for the benefit of the employer. Because the purpose of the sessions was to avoid friction between the plaintiff and the department, the department should compensate the plaintiff, the court held.

Diabetic Transferred Out of Job Has No Claim Under ADA

The U.S. Court of Appeals for the Sixth Circuit held that a diabetic forklift driver transferred from her position had no claim under the American with Disabilities Act. Mohr v. Hoover Co., 2004 WL 1098748, (6th Cir. May 14, 2004).

Plaintiff Lucille Mohr, who suffered from Type II diabetes, operated a forklift at least 25 feet in the air in order to retrieve medical supplies. In a review of medical records, the company medical director learned that Mohr suffered from the disease. After meeting with Ms. Mohr's personal physician, the medical director imposed an employment restriction barring use of the fork truck. Although Ms. Mohr submitted a letter from her personal physician attesting to her fitness for the job, the medical director did not change his position. Instead, Mohr was allowed to bid on other jobs, though she claimed a net loss of $25,000 given the new jobs had no overtime.

Ms. Mohr sued in federal court, arguing that her transfer violated the ADA as well as the sex discrimination provisions of Title VII of the Civil Rights Act of 1964. The lower court granted summary judgment to the company on all counts, and Ms. Mohr appealed to the Sixth Circuit. The court held that Ms. Mohr failed to prove that she was prevented from a class of jobs or a broad range of jobs in various classes. Instead, the court argued, she was unable to perform a “single, particular job” that is allowed by standards set by the Equal Employment Opportunity Commission.

Disciplined Corrections Officers Not Granted Injunction Against Employer

After being disciplined by the Connecticut Department of Corrections (DOC) for their involvement with a national motorcycle gang, five corrections officesr failed to convince a federal trial judge to enjoin the employer from executing such discipline. Piscottano v. Murphy, 2004 WL 1093374 (D. Conn. May 14, 2004).

In August 2003, the state DOC began investigating allegations that the officers were members of the Outlaws, a rival group of the Hell's Angels that is reputedly a major drug trafficker whose members engage in violence. DOC interviewed the plaintiffs, who all had spotless disciplinary records. Three of the plaintiffs were found to have lied about their membership and were fired, while the other two admitted to attending certain Outlaw functions. These employees were issued “formal counselings” and were told not to repeat the behavior under the threat of further and more severe discipline. The plaintiffs sued under the Civil Rights Act of 1871 claiming violations of numerous constitutional rights, including freedom of association.

In order to obtain a preliminary injunction, the plaintiffs had to prove both irreparable harm without one, as well as either a likelihood of success on the merits or sufficiently serious questions on the merits making them fair ground for litigation. Regarding irreparable harm, the court noted that being prevented from attending social events is not the type of injury that gives rise to a presumption of such harm. The court also held that the plaintiffs failed on the merits because they could not show that their activities touched on matters of public concern as required under the First Amendment inquiry. The court found a rational basis for the DOC actions, including a desire not to have employees associate with a group that had been accused of criminal activity.

Federal Court Finds That Executive Terminated at 55 May Pursue Age Bias Claims

The U.S. District Court for the Northern District of Illinois held that a 51-year-old salesman who was one of eight employees fired during a reduction-in-force may pursue a bias claim under the Age Discrimination in Employment Act. Cornelius v. ADP Inc., 2004 WL 1102389 (N.D.Ill. May 03, 2004).

The plaintiff, Dale Cornelius, was a national account district manager selling ADP Inc. products and services to customers with 1000 to 5000 employees. The company decided in 2002 that it needed to reduce its work force. ADP argued that the plaintiff was fired because he was not meeting the employer's job expectations, having failed to meet his sales quota in either 2001 or 2002, the years prior to his termination. However, Cornelius disputed this evidence by pointing out that he had six times placed in the President's Club for exemplary sales results. Judge Joan Humphrey Lefkow agreed with the plaintiff and held that he may rely on evidence of above average performance for his 17 years in the job to establish a prima facie case of discrimination.

The plaintiff also showed that he was among the oldest of the terminated employees, three of whom were 40 or older. Four younger employees, three of whom were in their thirties, had similar job performances to the older employees, but were retained by the company.

Time Spent in Counseling to Minimize Work-Related Stress Is Compensable

The U.S. District Court for the Northern District of Illinois ruled that the Aurora police department violated the Fair Labor Standards Act when it refused to pay overtime to a former employee for time spent in counseling sessions required by the employer. Sehie v. Aurora, Ill., 2003 WL 21730120 (N.D.Ill. Jul 24, 2003).

The plaintiff, Kari Sehie, worked as a telecommunicator, answering phone calls from the public. After being instructed in December, 2000 to work an extra shift for a sick employee, Ms. Sehie protested, ultimately becoming upset and leaving work due to stress. Between leaving work on that day and returning the next day, the plaintiff spoke with a doctor and took medication for stress. The doctor determined that Ms. Sehie was fit for duty but that she should attend weekly psychotherapy sessions for 6 months. The company agreed to the suggestions, and Sehie attended 16 sessions between February 2001 and June 2002, all outside of her normal working hours. She worked 40 hours per week in addition to attending these sessions, but was never paid overtime. Ms. Sehie voluntarily resigned from the job in June.

The city argued that the compensability for such treatment is governed by a labor department regulation which states that time spent by an employee receiving medical attention at the employer's direction during normal working hours is compensable, but that time spent outside normal working hours is not. The court, however, was not persuaded, finding that an employee must be paid for all time spent in physical or mental exertion controlled or required by the employer and pursued for the benefit of the employer. Because the purpose of the sessions was to avoid friction between the plaintiff and the department, the department should compensate the plaintiff, the court held.