January 2012 Archives

January 26, 2012

Wrongful Termination of Firefighter a Result of Gender Discrimination

1018822_firefighters.jpgBrittany McMahon wanted to be a firefighter, so she joined the Carlsbad fire department to complete her year-long probationary period in January, 2010. According to Ms. McMahon, she completed all tasks assigned to her and passed her physical tests, some of which she believes were made even harder for her than her male counterparts.

While living at the station on her work days, she was allegedly subjected to sexual harassment, such as being pulled toward a male firefighter by her belt loops and being offered assistance with showering. Online comments about female toiletries appearing in a unisex bathroom at a fire station added to the hostile work environment, Ms. McMahon claimed.

According to the lawsuit, around the end of her probationary period, Ms. McMahon was told she could either resign voluntarily or be terminated by the department, the latter of which would hurt her chances of finding a position elsewhere. Ms. McMahon felt she had no other choice than to resign. Her wrongful termination lawsuit, which is supposedly asking for about $2 million in damages, states that she was discriminated against because she was a woman trying to get into a fire department that has always been all men.

This case illustrates the different types of sexual harassment and gender discrimination that can occur. The other firefighters commenting about the station bathroom being filled with "tampons...hair accessories" and other female items is gender discrimination in which the complainant's entire gender is being insulted. A sexually charged hostile work environment was created when the male firefighters allegedly made comments about helping her in the shower and grabbed her by her pants. It does not appear that Ms. McMahon was terminated because she turned down the sexual advances of a supervisor or co-worker, which would be considered quid pro quo sexual harassment. Rather, the complaint states she was forced to leave her job simply because she was a woman.

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January 21, 2012

Louisville, Kentucky Employee Settles Whistleblower Suit

In an attempt to make the city of Louisville, Kentucky greener and save money, officials announced in September 2009 that Metro would implement more energy-efficient measures. Eric Garrett, a Public Works employee was involved in the effort, writing hundreds of work orders for updating or replacing equipment. Upon noticing that some of the recommended work was not being done, Mr. Garrett contacted Louisville's government ethics tip line and Councilman Hal Heiner in 2010. About two weeks later, he was suspended from work, initially for three days, then indefinitely, because a co-worker had supposedly filed a complaint against him.

Mr. Garrett felt that the suspension coming so soon after his reporting of alleged mismanagement by the department was more than coincidence. The attorney he hired agreed, and he filed a whistleblower retaliation suit on Mr. Garrett's behalf. The state of Kentucky has a whistleblower law that pertains to employees of the state and its "political subdivisions." A 2010 Kentucky Supreme Court case decided that city governments are "political subdivisions," so Mr. Garrett would be covered under this law. The law prohibits employers from retaliating against employees that report inappropriate behavior to the proper authorities. In this case, Metro Public Works allegedly retaliated against Mr. Garrett by suspending him supposedly for another reason no more than two weeks after he reported what he felt was mismanagement by them. The law also states that employees are not required to notify their employers that they intend to make a report. The law does not allow employees to make false accusations or divulge confidential corporate information. If this occurs, legal action can be taken by the employer.

The city of Louisville investigated the complaint against Mr. Garrett and determined there was not enough evidence to show he did anything wrong. Mr. Garrett was given back pay and benefits for the time he was suspended. He was also allowed to go back to work, but was told he would have to submit to a psychiatric evaluation to confirm he was fit to return. His attorney fought the evaluation requirement and won, stating his client had been suspended, not on medical leave. Mr. Garrett returned to work, but the whistleblower suit remained.

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January 11, 2012

Kentucky Police Chief Pursuing Wrongful Termination Lawsuit

1066864_police_cruiser.jpgFormer Harrodsburg, Kentucky Police Chief, Rodney Harlow, was terminated by the city commission at the end of 2011. Mr. Harlow filed a wrongful termination lawsuit against the city's mayor and commissioners. He also filed a motion for temporary injunction, which the judge denied earlier this week. The temporary injunction would have allowed Mr. Harlow to maintain his position as police chief during the litigation, but because of the judge's denial, he has been removed, pending the outcome of the suit.

Mr. Harlow's lawsuit is based largely on a Kentucky state law called the policeman's bill of rights. This law requires officers to be notified of complaints and entitles them to a hearing and an opportunity to appeal a termination related to a specific charge. Allegedly, complaints were made to a couple of the commissioners, but the information was never relayed to Mr. Harlow, so he was never given the opportunity to respond to them. Counsel for the city contends that Mr. Harlow was not covered by this law because he was a part-time employee and the law only applies to full-time employees. Mr. Harlow's attorney believes he is covered because the law pertains to any police department that receives assistance from the Kentucky Law Enforcement Foundation Program, which Harrodsburg does. Also, several employees have stated that Mr. Harlow worked 40-60 hours per week, which constitutes full-time hours.

Both compensatory and punitive damages have been requested in the lawsuit. Compensatory damages cover losses not associated with pay. In Mr. Harlow's case the compensatory damages are being sought for the negative effects this firing may have on his professional reputation. Punitive damages are meant to punish the defendants and hopefully deter them from acting in the same manner in the future. Punitive damages can only be awarded if it is determined the defendants acted maliciously, which Mr. Harlow alleges both the mayor and the commissioners did in this case. He is also seeking lost wages and wishes to be reinstated to his position as police chief.

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January 6, 2012

Cancer Patient Receives Settlement in Disability Discrimination Lawsuit against Walmart

1125238_forklift_1.jpgCharles Goods was hired by Walmart in Greenville Tennessee in 1997 to work at a warehouse as a forklift operator. After being diagnosed with thyroid cancer, he had surgery, during which some of the nerves in his right shoulder were severed. This resulted in permanent loss of strength and feeling in his right arm, making it difficult if not impossible to lift with that arm. Mr. Goods returned to work after the surgery and continued to successfully fulfill his job requirements until 2008. That year, a supervisor asked him to fill in during a co-worker's 20-minute break. The co-worker's job required lifting and Mr. Goods informed the supervisor that he could not comply.

At the supervisor's direction, he filed a request for reasonable accommodation, which informs the employer of the disability and is supposed to initiate a conversation between the employer and employee regarding the nature of the disability and what steps need to be taken to accommodate the employee. Mr. Goods included the fact that he had been successfully fulfilling his job requirements for the duration of his employment, including the three years after the surgery that caused his condition. According to the complaint filed by the Equal Employment Opportunity Commission (EEOC), Walmart did not discuss anything with Mr. Goods, but rather placed him on leave for 90 days and was ultimately told to find another position that did not require manual lifting. Six months later, after filing a discrimination charge, he was terminated by Walmart.

According to the Americans with Disabilities Act of 1990 and the amendments passed in 2008 in the Americans with Disabilities Amendments Act, it is unlawful to deny an employee reasonable accommodation and to retaliate against an employee for filing a discrimination lawsuit. According to the EEOC, Walmart failed to comply with both of these items, and filed a civil suit in 2010 on behalf of Mr. Goods.

In December 2011, Walmart settled with Mr. Goods. He was awarded $110,000 for wages lost in 2009 and 2010 and $165,000 in compensatory damages. Compensatory damages in this case most likely included additional loss of income and emotional distress. This type of damages is meant only to return the plaintiff to the place he was before the incident, not to punish the defendant. According the EECO, the following terms were also included in the settlement:

"In addition to the monetary relief, the 18-month consent decree settling the suit enjoins Wal-Mart's distribution center #6039 from further failing to provide reasonable accommodation, absent undue hardship, or following proper procedures for handling such requests per the ADA and ADAAA. In addition, the decree requires that Wal-Mart provide anti-disability discrimination training to its management staff; maintain records of any accommodation requests and furnish them to the EEOC; and post a notice to employees about the lawsuit that includes the EEOC's contact information. Wal-Mart has revised and amended its accommodation policy, which it distributed to all employees, to address accommodation issues."

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