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Articles Posted in Wrongful Termination

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The Kentucky Commission on Human Rights (KCHR) was founded in 1960 to help stop discrimination of people based on their race or ethnicity. When the Kentucky Civil Rights Act was passed in 1966, KCHR took on the task of enforcing this law throughout the state. This commission is similar to the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces anti-discrimination laws that prohibit employers from discriminating against employees or potential employees based on age, gender, race, religion, ethnicity, or disability. KCHR reviews complaints filed by employees to determine if they have a valid claim of discrimination, sexual harassment, or wrongful termination under state and federal employment laws.

Not all employers are governed by the Kentucky Civil Rights Act. An employer must have at least eight full-time workers for twenty or more weeks in a year for the act to apply. Federal anti-discrimination laws also may not apply to those businesses that have a small number of full-time employees. An employee must file a claim with KCHR within 180 days of the incident to have his or her claim considered.

Once a complaint is received by KCHR, an enforcement officer is assigned to the case to act as a neutral party between the employee and employer and investigate the claim. A letter is sent to the employer who has 20 days to respond with its side of the story. The officer will conduct an investigation, talking to witnesses and reviewing documentation. If he feels that discrimination most likely occurred, the case will be referred to a staff attorney. If he does not think discrimination occurred, he will recommend that the complaint be dismissed for “no probable cause.” Both sides will be encouraged to conciliate the case throughout the investigation, which is similar to settling a dispute out of court. If a conciliation agreement cannot be reached, the complaint will be heard by the KCHR and a decision will be made by the commission.
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The Pregnancy Discrimination Act (PDA) was added to the Civil Rights Act of 1964 to ensure that women were not discriminated against while pregnant. The act prohibits employers from refusing to hire a woman because she is pregnant; requires an employer to treat a pregnant woman the same as someone with a different temporary disability if she is unable to work temporarily; and requires an employer to provide the same type of health insurance at the same rate as other employees.

But there are some issues that the current act does not cover, which is why legislators introduced a new bill called the Pregnant Workers Fairness Act in May 2012. This act would essentially afford pregnant women the same protections and flexibility that those with disabilities are given. Under the current act, many employers are not accommodating to pregnant women because they don’t have to be. The Americans with Disabilities Act (ADA) does not cover pregnant women because they are not actually disabled, and some companies take advantage of the difference. Many cases illustrate this discrepancy. Noreen Farrell, executive director of Equal Rights Advocates (ERA) gives this example: “We see that male firefighters who throw out their backs are given desk jobs, but women who are pregnant don’t get them…There is an ability to provide accommodations, but employers don’t want to.”

Some women don’t even request an accommodation because they are afraid their boss will force them to take their paid time off guaranteed by the Family Medical Leave Act (FMLA) too soon. If a woman takes off too soon, she may end up having to take unpaid time right before and after her delivery, something many families cannot afford. Others who have asked have been ignored or fired.
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Employees are discriminated against for many reasons, including their age, the color of their skin, whether they are male or female and their religious beliefs. Recently an Indiana court was asked to consider whether or not an employee was discriminated against because she asked for a protective order against an abusive ex-boyfriend. While the two may seem unrelated at first, there is a definite connection.

A female employee at Pitney Bowes requested a protective order from the court to keep her abusive ex-boyfriend from having any contact with her. When it was granted, she told her employer about it. Her employer put her on paid leave for about two weeks to determine how to handle the situation. When the employee called for an update on November 1, 2011, she was told she had been fired. Her supervisors did not deny that her firing was based on the protective order; rather they said that was the exact reason she was let go. They said they had to consider the safety of their other employees.

The fired employee’s attorney said he tried to negotiate with the company to get her job back, but it wasn’t until a discrimination lawsuit was filed that Pitney-Bowes offered to find the Indiana employee a position in a different location. The agreement has not yet been finalized. The lawsuit claimed gender discrimination under the Civil Rights Act of 1964 because the majority of people who seek protective orders are women; so a company that discriminates against employees that request protective orders is essentially discriminating against women.

Women’s advocates fear that this potential discrimination will keep abused women from filing protective orders. They may feel they have to stay in an abusive relationship to keep from losing their jobs. Fifteen states currently have laws that prevent employees from being fired for seeking legal protection from an abuser, but Indiana is not one of them. The state does have a law that compensates women with unemployment benefits if they have to quit their jobs because of an abusive or violent domestic situation. Unfortunately, the state of Kentucky does not have either of the above laws to help women who were or are in an abusive relationship and want to get out. Hopefully that will change in the near future.
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The KFC Yum! Center was opened in Louisville, Kentucky with much fanfare in October 2010. Ted Nicholson, general manager of the arena, took part in the excitement and was set to manage the arena through numerous upcoming venues, including the NCAA Tournament this year. Then in February 2012, Harold Workman, president of the Kentucky State Fair Board (KSFB), fired him, much to the surprise of the rest of the fair board and Mr. Nicholson himself. The KSFB chairman tried to get him reinstated to his position, but was unsuccessful. The University of Louisville then hired him to oversee the NCAA Tournament, which appeared to be successful.

With the tournament over, Mr. Nicholson has focused his energy on seeking justice for his alleged wrongful termination. On April 27, 2012, he filed a whistleblower lawsuit against KSFB. A whistleblower is someone who reports a company for a variety of reasons, including illegal activities, mismanagement of funds, corruption, and health or safety violations. This information may be divulged to someone else within the company, an outside person, or law enforcement. If the company retaliates against the whistleblower in any way, including termination, the whistleblower can file a lawsuit. Whistleblowers in Kentucky are protected by federal laws as well as the Kentucky Whistleblower Act. This state act protects employees who divulge information to the proper authorities. It does not allow employees to share confidential or incorrect information, and it gives employers the right to find out what information the employee has shared. Employees who share incorrect information can face disciplinary action.

According to the lawsuit, Mr. Nicholson believes he was retaliated against after telling an outside consultant about some of the issues the arena was having and attributing them to Mr. Workman. The consultant had been hired to review the operation of the arena and Nicholson states his answers to the firm’s questions were “honest and sincere.” He claims that numerous unqualified employees were hired because they were acquainted with the fair board president and events that were not profitable continued to be booked. When the negative report came back from the consultant, Nicholson claims he was reprimanded by Mr. Workman and ultimately terminated because of it in February. The board president has announced his plan to retire at the end of the year.
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Unions were created to protect the rights of American workers from those higher up who may not have their best interests in mind. Sometimes, however, the unions themselves can make bad decisions that end up negatively affecting a worker they are supposed to protect.

In 2008, Jon Stokes, who is African-American, was allegedly wrongfully terminated his job as shop steward at a construction site. He was immediately replaced with a white employee who had been on the job for only two months by the local plumber and pipefitters union. Stokes allegedly contacted union leaders regarding his termination being fueled by racism, but an investigation was never done. Because of this, the Division of Civil Rights filed a lawsuit.

An agent for the union said Stokes was terminated because people had complained he was too slow in filling their requests for materials, but the workers who had supposedly complained were never identified. Also, Stokes noted that he was never made aware of any issues before his termination.

Earlier this month, the union agreed to settle this matter with the Civil Rights Division. Several changes will be implemented because of this settlement. Union leaders will be required to attend training regarding civil rights law at the state and federal level. Policies that were previously lacking will be established, including how discrimination complaints should be reported and investigated. Anti-discrimination and harassment policies will be created and given to all union members.

While this settlement does not mean the union admitted any wrongdoing, the director of the Civil Rights Division was satisfied, saying “This is a fair resolution of some troubling allegations…It is vital that all employers strive to create a healthy workplace climate, and that every employee — from the home office to the job site — knows and understands the law.”

Jon Stokes has filed a personal lawsuit against the union and it is still pending.
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When one hears the name NASA, rocket ships and space exploration come to mind, not religion. But one man is suing a California division of NASA for alleged religious discrimination. David Coppedge was a computer specialist that worked on a NASA mission exploring Saturn and its moons. Once a team lead on the project, he claims he was demoted and eventually terminated because of his religious beliefs. Mr. Coppedge believes in intelligent design, a theory stating that something must have driven evolution.

NASA claims the 15-year project was winding down at the time of his termination and that 264 other employees were also let go at the same time because of budget cuts. Mr. Coppedge claims that his speaking to his co-workers about intelligent design led to his termination. Two other items that may have contributed was his desire to have the holiday party called a “Christmas party” and his backing of a proposed measure to have marriage only pertain to heterosexual couples.

Religion is one of many types of discrimination that are illegal under Title VII of the Civil Rights Act of 1964. According to the Equal Employment Opportunity Commission (EEOC), “Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.” The unfavorable treatment can be in found in several forms, including refusal to hire an applicant, a negative difference in pay or benefits, being passed over for promotions, or wrongful termination.

Under Title VII, employers are required to make reasonable accommodations for employees’ religious beliefs. This may include allowing certain types of dress or appearance required by an individual’s religion or not requiring someone to attend functions that go against their beliefs. Unreasonable accommodations are those that would be extremely costly to the employer, would put other employees at risk for harm, or would impede the rights of others.
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The Worker Adjustment and Retraining Notification Act (WARN) is a federal law that was passed in 1988 and became effective in 1989. According to the Department of Labor, the act “protects workers, their families, and communities by requiring most employers with 100 or more employees to provide notification 60 calendar days in advance of plant closings and mass layoffs.” While this quote gives a general description of what the act does, more information is needed to understand which employers are required to follow the WARN Act and which employees may benefit from its protection.

As the quote says, a company must employ at least 100 workers for the WARN Act to apply. All 100 workers must have been employed by the company for at least six months and average at least 20 work hours per week. For example, a company that employs 65 people year-round and hires another 40 seasonal workers for three months would not be governed by the WARN Act.

Even companies that have 100 qualifying employees may be exempt in certain circumstances. If a company is trying to find investors to help keep the company afloat, and giving a 60-day notice to its employees would hinder this activity, the company may not be required to give the notice. If Mother Nature causes the company to be shut down due to a disaster such as a tornado, hurricane, or flood, the notice is not required because the closure could not be anticipated. In a similar vein, if a company suddenly loses a main source of income because of a cancelled contract or other unforeseeable issue, a 60-day notice may not be possible. In these cases, the companies are still required to provide notice of the layoffs or closure as soon as possible, and they must provide a viable reason why the full 60-day notice could not be given.

The next part of the act to consider is which employees are covered. In general, anyone working for a company that fits the criteria above would be covered, including salaried and hourly employees, managers and supervisors. There are exceptions though. Anyone working for a branch of the government – federal, state, or local – is exempt. Those who have accepted a position knowing it is temporary and those who are hired as self-employed contractors do not qualify. Individuals who are involved in a labor dispute lock-out or who participate in a strike are also not entitled to the 60-day notice.
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In 2003, Gloria Garcia’s employment as a school secretary was terminated by the principal of a school in the Mission school district. She had been employed by the school for 17 years and was 48 years old. In a regular story about age discrimination, the next bit of information would be how much younger her replacement was. But this case is unusual in that Ms. Garcia’s replacement was actually three years older.

The school district has tried twice to have the case thrown out, partly because they claim schools cannot be sued for discrimination, and partly because age appears to be a non-issue in the firing of Ms. Garcia since her replacement was older. The school appeals took so much time that Ms. Garcia will not get to personally hear the final verdict in the case because she passed away in 2010. But the decision will still be important to other employees who are over 40, including two women who were let go by the same school district.

Ms. Garcia’s attorney contends that the school district can definitely be sued for discrimination because it is regulated by individuals elected in to office, it runs on money collected from taxpayers, and it provides a public service. She also explains how an age discrimination claim could be valid when the new employee is older than the one terminated. One scenario would be that the supervisor responsible for the firing did not hire the replacement. So in this case it is possible that the principal had an issue with Ms. Garcia’s age and wrongfully terminated her, but it was left up to human resources to find a replacement, which they did. The individual just happened to be older. Another possibility brought up by one of the chief justices reviewing the case is that an attorney for the school district realized they could be in trouble for firing Ms. Garcia based on her age, so he recommended that she be replaced by an older person.

These questions could be answered through depositions and documents, if the school system would stop filing appeals so discovery could continue. Ms. Garcia’s attorney admits that if it is proven that the same principal that fired Ms. Garcia also hired her older replacement, then she would most likely no longer have a case. But for now, the questions still remain.
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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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Former 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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