Blog Posts | Jackson Lewis

Disability Access Litigation and ComplianceBlog Posts

Terminated Employee Who Made Pre-Eligibility Request for Post-Eligibility Leave May Pursue FMLA Interference and Retaliation Claims; Court Rejects FMLA Loophole A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination. Pereda … Continue reading Terminated Employee Who Made Pre-Eligibility Request for Post-Eligibility Leave May Pursue FMLA Interference and Retaliation Claims; Court Rejects FMLA Loophole January 24, 2012	FMLA Claim Must Be Arbitrated Due to Union Contract Waiver of Judicial Forum An employee must arbitrate his FMLA claim where the labor contract governing his employment waived his right to pursue employment claims in court, according to the United States Court of Appeals for the Eighth Circuit. Thompson v. Air Transport Int’l LLC (12/28/11). The Court relied on the Supreme Court’s 2009 decision in 14 Penn Plaza … Continue reading FMLA Claim Must Be Arbitrated Due to Union Contract Waiver of Judicial Forum January 22, 2012	“Severe Obesity” is a Disability Under the ADA, Federal District Court Rules “Severe obesity” is a disability under the ADA and a plaintiff need not prove an underlying physiological basis for it, according to a Louisiana federal court. The court denied the employer’s motion for summary judgment. EEOC v. Resources for Human Dev., E.D. La., 12/7/11). Noting that there is no federal law prohibiting discrimination based on … Continue reading “Severe Obesity” is a Disability Under the ADA, Federal District Court Rules January 16, 2012
Exacerbation, Causation and Retaliation under the FMLA Whether a supervisor mistreated the plaintiff after he returned from his second leave of absence, causing him to need a third leave, is irrelevant to his FMLA retaliation claim because “[e]xacerbation is not a valid theory of liability under the FMLA” according to the Seventh Circuit. Breneisen, Jr. and Lineweaver v. Motorola, Inc. (7th Cir. … Continue reading Exacerbation, Causation and Retaliation under the FMLA November 9, 2011	Swine Flu Snafu: ADA Claim Dismissed, Even if Plaintiff Had Swine Flu A plaintiff who thought she had the swine flu, and thought she had an ADA claim when she was terminated after four days of absence for the flu, had neither. Lewis v. Florida Default Law Group,P.L. (M.D. FL Sept. 15, 2011). The plaintiff was diagnosed with “seasonal flu” but “understood” she was diagnosed with the H1NI … Continue reading Swine Flu Snafu: ADA Claim Dismissed, Even if Plaintiff Had Swine Flu September 21, 2011	Second Circuit Applies Title VII Retaliation Standard to FMLA Retaliation Claims Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation. … Continue reading Second Circuit Applies Title VII Retaliation Standard to FMLA Retaliation Claims September 19, 2011
Testing Protocol for Lawful Drugs Illegal ADA Exam and Inquiry A drug testing protocol for both legal and illegal drugs was an unlawful medical examination, and the follow up questions about lawful drug use were unlawful disability-related inquiries, according to a federal district court in Tennessee. Bates v. Dura Automotive Systems, Inc., (Aug. 29, 2011). The court rejected the company’s motion to set aside a jury … Continue reading Testing Protocol for Lawful Drugs Illegal ADA Exam and Inquiry September 12, 2011	Rotating Assignments as an Essential Job Function under the ADA: The Cases of the Acrophobic Bridge Worker and Incontinent Court Reporter Recall the incontinent court reporter. She had a steady assignment compatible with her medical condition until the chief judge required court reporters to rotate through all courtrooms. In the lawsuit challenging the court reporter’s termination, the court held that rotating was an essential function of the court reporter’s job and because she could not do … Continue reading Rotating Assignments as an Essential Job Function under the ADA: The Cases of the Acrophobic Bridge Worker and Incontinent Court Reporter September 11, 2011	Referring Mystic for Counseling Leads to ADA “Regarded As” Claim When an employee complains of harassment, the employer response is to investigate and take appropriate remedial action. In Kagawa v. First Hawaiian Bank/Bancwest Corp., the employer responded accordingly and is now a defendant in an ADA “regarded as” claim. The plaintiff, a Senior Credit Analyst, alleged that she is a mystic, hears God’s voice directly, … Continue reading Referring Mystic for Counseling Leads to ADA “Regarded As” Claim September 8, 2011
Courts Split on Employer’s ADA Obligation to Accommodate Commute Reversing summary judgment for the employer, the Second Circuit said that “in certain circumstances, an employer may have an obligation to assist in an employee’s commute” to work as a reasonable accommodation. The Court cited its observation in an earlier decision that “there is nothing inherently unreasonable…in requiring an employer to furnish an otherwise qualified … Continue reading Courts Split on Employer’s ADA Obligation to Accommodate Commute September 6, 2011

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