Wrongful Termination Archives - Page 4 of 5

ADA Doesn’t Cover Alcoholic Driver

In an opinion issued this week regarding alcoholism as it relates to an ADA claim, the Eleventh Circuit of Appeals found in favor of the employer. From 2003 until 2010, Sakari Jarvela was employed as a truck driver for Crete Carrier Corporation. After he returned from FMLA leave for treatment of his alcoholism, Crete terminated Jarvela’s employment. The primary issue presented to the appellate court was whether or not Crete’s decision to terminate Jarvela’s was lawful under ADA guidelines.

Under the Americans with Disabilities Act, a plaintiff must establish three things: (1) he is disabled; (2) he is a qualified individual; and (3) he suffered unlawful discrimination because of his disability. In this action, the issue of Jarvela’s status as a qualified individual was a point of contention.

Pursuant to ADA guidelines, a qualified individual is one who “satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and with, or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). The trucking company’s job description for the position Jarvela held reads in part, an essential function of the job is that the employee meets the qualifications as a commercial driver as set forth by DOT regulations and Crete’s company policy.

The Department of Labor’s guidelines set forth that a person who suffers from a current clinical diagnosis of alcoholism is not medically qualified to drive a commercial truck. In addition, the DOL states that the employer has the burden, ” to ensure that an employee meets all qualifications.” In it’s company policy, Crete prohibits the employment of anyone that has been diagnosed with alcoholism within the past five years.

Under the Family Leave Medical Leave Act, it is unlawful to retaliate against an employee that takes leave under FMLA. Attorneys for Jarvela argued that he was terminated as a form of retaliation. Crete argued that based on its established policy, the company would have terminated Jarvela’s employment even if he had not taken FMLA leave.

For the above described, the appellate court affirmed a lower court’s decision in favor of the employer.

If you or someone you know thinks they have experienced wrongful termination due to an ADA claim, the team at Radford & Keebaugh can help. Contact us by phone at (678) 369-3609or use our contact form.

Supreme Court Rules in Favor of Whistleblower in Retaliation Case

In a decision issued on June 19, 2014, the Supreme Court ruled in favor of a public employee who was terminated after he testified in a case of corruption at Central Alabama Community College. Edward Lane worked as the Director of the college’s Community Intensive Training for Youth (CITY) program . While conducting an audit, Lane discovered that a state representative, Susan Schmitz, was on the program’s payroll despite the fact she had not done any work for the program.

As detailed in this npr article, at the same time the FBI was investigating Schmitz, CITY was experiencing budget concerns. After Lane testified against Schmitz, Central Alabama Community College president Steve Franks terminated Lane’s employment with the college. Under the guise of budget cuts, Franks terminated an additional 28 employees and two days later rehired all but two, of which Lane was one of the two.

In a suit claiming that Franks had violated his First Amendment protections, Lane named Franks in his individual and official capacity as president of the school. Two lower courts found in favor of Franks, stating that Lane acted in his official capacity in terminating Schmitz and could not claim protection under the First Amendment.

In its opinion issued today, the Supreme Court found in favor of Lane, stating that he testified “as a citizen on a matter of public concern.” In reference to Lane’s trial testimony, the court called it “a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to the tell the truth.”

If you or someone you know believes they have been retaliated against and/or wrongfully terminated, the team at Radford & Keebaugh can help. Contact us by phone at (678) 369-3609 or use our contact form.

Laurus Technical Institute’s “No Gossip” Policy Found to be Unlawful

In a decision issued last week, the National Labor Relations Board found that a college’s “No Gossip” policy was too broad and in violation of labor law. For more information, and a copy of the NLRB decision, see here. In its employee handbook, Laures Technical Institute’s policy on gossip reads in part, “Gossip is not tolerated at Laurus Technical Institute. Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action. Gossip is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral, and overall satisfaction.”

As a result of the decision, an employee of the college who was terminated for violating the school’s policy on gossip was awarded back pay with additional interest on the amount. In addition, the college has been ordered to cease from maintaining or enforcing its overly broad No Gossip policy and from disciplining employees in any way for violating such policy.

The judge found that, “A thorough reading of this vague, overly-broad policy reveals that it narrowly prohibits virtually all communications about anyone, including the company or it managers.” The judge further stated that overly broad policies such as this, “Inhibit employees from bringing work-related complaints to, and seeking redress from, entities other than the [employer] and restrains the employees’ Section 7 rights to engage in concerted activities for other mutual aid or protection.”

If you or someone you know thinks they have been wrongfully terminated, the team at Radford & Keebaugh can help. Contact us by phone at (678) 369-3609 or use our contact form.

7 Tips To Prove Your Employment Discrimination Claim

We have represented hundreds of clients who have been the victims of employment discrimination. Over time, we have learned what individuals can do to help prove their claim when their day in court finally comes. We have also learned the many mistakes people make, which prevent them from proving their claim. It cannot be repeated enough: believing you have been the victim of discrimination is one thing; proving it is something else entirely.

If you believe you are experiencing unlawful discrimination on the basis of your race, sex, religion, disability, national origin, age, or other protected category, there are some steps you can take to help prevent it, stop it, or prove it should that become necessary. Below are seven tips we can give to anyone experiencing employment discrimination. This is for informational purposes only, and does not constitute legal advice. However, we are ready and willing to help should you need us. Contact us here.

1. Document it. If something happens that you believe evidences discrimination, document it. This can be something as simple as keeping a written diary or log, noting the date the event happened, any witnesses to the event, and the details as to what happened. For example, if a supervisor used a racial slur in the workplace, make a note of it, including the date and time, where it occurred, the specifics of what was said, the context of it, and anyone else who witnessed it. If a manager made a sexually inappropriate remark, or a derogatory remark about your disability, keep a log of it. Being able to recount specific details of events will make your case much more credible than vague, non-specific complaints.

2. Report it. This is a difficult, but important point. Most companies have a policy prohibiting discrimination and harassment. In many cases, the law requires that an employee report discrimination and try to resolve it internally with the employer, before he or she can bring a legal claim. You may fear that you will suffer retaliation (although the law prohibits it). You may fear that your employer will not listen to you, or will not correct the behavior. Therefore, the idea of blowing the whistle on discrimination is very frightening to many people. Nonetheless, most judges and juries will expect to see some evidence that you at least tried to stop the discrimination before going to court. And oftentimes, your employer actually will take the action necessary to address the wrongful behavior, and prevent you from having to go to court in the first place. As the old saying goes, “an ounce of prevention is worth a pound of cure.”

3. Investigate it. Do you have a gut feeling that you were denied a promotion based on your race or your sex? Your “gut feeling” is not enough, unfortunately. You need to find out more details. Do what you can legally (and without violating company policy) to investigate your suspicions. Find out who received the promotion, and what their race or sex was. Ask around to find out whether that person was qualified for the job. Keep your ear to the ground to find out if the decision-maker has ever expressed any bias. In other words, find out more information, keeping your mind on the fact that ultimately, you have to prove discrimination in order to recover legal damages.

4. Identify witnesses. The hardest cases to win are “he said/she said” cases. So, if there are others who can corroborate your claim, and who you believe are sympathetic to your cause, make a note of it. Consider reaching out to the individual to ask if they might be willing to put in writing what they witnessed. For example, if your manager has made disparaging remarks about your age, your disability, or your religion, find out if anyone else has heard him make those types of remarks. Email is often a useful tool. Ask someone, via email, what they witnessed. If they respond, stating in the email what they saw or heard, save that email. Print it out for your records. This could one day be important to proving your claim.

5. Don’t give your employer a valid reason to fire you. Oftentimes, we interview people who “gave up” at work due to their experience with discrimination. The employee may have become bitter or resentful of their prejudiced manager, and stopped doing what he or she said at work, therefore causing themselves to be disciplined or fired for insubordination. The employee may have begun to feel helpless, and stopped giving their work their best effort, resulting in negative performance reviews and ultimate termination. This is a big mistake. If your employer has a valid, non-discriminatory reason to fire you, it will severely undermine your claim. Continue to do your job to the best of your ability. Adhere to all workplace rules. Don’t ruin your case by giving your employer a valid reason to fire you.

6. Document your damages. Most of the employment discrimination laws allow you to recover both economic and non-economic damages. Economic damages are all monies lost as a result of the discrimination. So, keep good records of the amount of pay you make, the value of any fringe benefits (i.e. retirement plans, stock options), the amount of money you could make in the future if you received promotions, etc. If your experience has caused medical conditions–such as clinical depression, high blood pressure, insomnia, etc.–get treatment. Inform your medical provider of the cause for the condition, so that it can be documented. Get copies of your medical records. Proving your damages will be an important factor in settling or litigating your discrimination claim.

7. Consult counsel as early as possible. Don’t wait until months after your termination to talk to a lawyer. Don’t wait until EEOC has investigated your claim and issued a Right to Sue letter. As time passes, it becomes more and more difficult for an attorney to help you gather evidence and prepare your case. If you have evidence that you have suffered discrimination, contact an attorney as soon as possible. What you do in the early stages of your case is highly important, and an attorney can guide you. If you are ready to seek legal counsel, we are anxious to help. Please contact us today.

Supreme Court: Georgia’s Whistleblower Protection Act Protects City, County Employees Along with State Employees

In the consolidated cases of Warren v. Fulton County and Colon v. Fulton County, the Georgia Supreme Court issued an order that strengthens our state’s whistleblower statute, by clarifying whether employees of local and county governments have the same protections afforded to state employees.

The Georgia Court of Appeals had previously held that the whistleblower law–O.C.G.A. 45-1-4, only applied to employees of “local governments,” if suspected fraud, waste, or abuse related to “state programs and operations.” The Supreme Court has reversed, finding that the statute protects all public employees who complain of fraud, waste, abuse, or violations of law, by a local government, and not only those who complain of abuse with respect to state funds. The court held, in a footnote:

Indeed, the straightforward construction of the statute outlined above makes perfect sense, as a public employee might not even know whether state money is involved at the time that he or she discovers and reports a violation of the rules to his or her supervisor. Under OCGA § 45-1-4, regardless of whether a public employee has knowledge of the extent to which state funds may or may not be involved in a reported violation of rules or regulations, the public employee would still be protected from retaliation after making the disclosure. This makes sense, as OCGA § 45-1-4 would then operate such that a public employee would always be protected from retaliation when disclosing improper conduct, rather than offering protection for some public employees who disclose improper conduct (i.e. those reporting rule violations relating to state funded operations) and leaving others who disclose improper conduct without such protection (i.e. those reporting rule violations that do not relate to state funded operations).

The Warren and Colon matters related to two former Fulton County employees who had been tasked to investigate internal complaints of fraud, waste, and abuse within Fulton County government. Shortly after they uncovered that a group of finance employees had been stealing county money to fund a private business, they were terminated without explanation.

James Radford and Lee Parks led the initial litigation of the case.