On September 13, 2006, under threat of subpoena, Carrie Hester gave testimony in the workers compensation case of another employee at Gilster Mary-Lee Corp. The next day, September 14, 2006, Gilster informed Ms. Hester that it would no longer be using her services and that if she wanted other employment she would have to return to Manpower, Inc., the employment agency through which Ms. Hester was placed with Gilster.
Ms. Hester sued Gilster for retaliatory discharge, alleging that she had only been assigned to work at Gilster by Manpower and that Gilster was her real employer. Ms. Hester alleged that while she was assigned to work at Gilster, Gilster set her daily hours, her work schedule, her hourly wage, and her job assignments. Ms. Hester also alleged that while she was assigned to work at Gilster, no one from Manpower supervised her work and that she worked “side-by-side” with regular Gilster employees with no distinction between them and herself or other workers provided by Manpower to Gilster.
Gilster filed a motion to dismiss Ms. Hester’s lawsuit which included an affidavit signed by Gilster's Risk Manager who stated that Ms. Hester was never an employee of Gilster, that Gilster did not pay Ms. Hester, that she was not on Gilster's payroll list, that Gilster did not maintain personnel records for her, and that Ms. Hester was not entitled to pension or other employee benefits through Gilster. Additionally, Gilster’s Risk Manager stated that Manpower paid Ms. Hester for the work she had performed at Gilster and that Gilster did not set her hourly rate but had merely paid a flat fee to Manpower for her services. The trial court granted Gilster’s motion to dismiss finding that Ms. Hester was not employed by Gilster and that Gilster therefore could not have discharged her. Ms. Hester appealed.
The appellate court framed the issue as “. . . whether a cause of action for retaliatory discharge extends to a borrowed employee whose employment with the borrowing employer is terminated for testifying in a coworker's workers' compensation claim.” Resolving the issue in Ms. Hester’s favor, the court held that, as a matter of first impression, “. . . a borrowed employee may maintain a cause of action for retaliatory discharge against a borrowing employer based upon an allegation that the employee has been discharged for engaging in activities protected by the Workers' Compensation Act.”
Hester v. Gilster-Mary Lee Corp., No. 5-07-0283 (Ill. App. Ct. Dec. 18, 2008).
Monday, February 16, 2009
Monday, February 9, 2009
Age and Gender Discrimination Case Rejected Due to Plaintiff's Poor Work Performance and Misconduct
The U.S. District Court for the Southern District of Illinois recently held in Lesicko v. Conoco Phillips Pipe Line Co. that the plaintiff was precluded from pursuing her claims of gender and age discrimination against her former employer due to her own misconduct at work and failure to meet the employer’s job performance expectations.
The plaintiff in the case, Julie Lesicko, was one of 18 employees working at Conoco Phillip’s (“CP’s”) East St. Louis terminal. Her employment began in June of 1995 and ended in March of 2007. Although Lesicko’s performance was initially good, she began experiencing problems in early 2001 when her position’s shift structure changed and a new supervisor was hired.
Lesicko received verbal and written warnings for misusing sick time, and in 2002, Lesicko made derogatory remarks about her supervisor in front of other employees and became aggressive and confrontational with co-workers. This behavior apparently continued into 2003 and 2004 and negatively impacted the relationships between employees and customers at CP. In September of 2006, CP received a call to its “AlertLine” by an employee complaining that Lesicko’s conduct was creating a hostile workplace. Specifically, it was reported that Lesicko “threatened her co-workers with lawsuits, screamed and cursed at them, cussed and used the ‘f word’ at co-workers and drivers, was abusive to them, was volatile, created turmoil in the building, threatened to get them fired and created a stressful working environment.”
Following an investigation, Lesicko was issued a one day suspension and given a “Final Warning” letter. However, six months later, trouble arose again when Lesicko threatened to beat up a co-worker. Lesicko’s schedule had her off work for eight days following the incident during which time CP conduced an investigation of the incident. Lesicko refused to participate in the investigation, and ultimately delivered a written resignation when she returned to work.
After receiving her Notice of Right to Sue from the EEOC, Lesicko filed a lawsuit against CP claiming that she had been discriminated against based on her gender and age in violation of Title VII and the ADEA. Specifically, Lesicko claimed CP unfairly denied her vacation requests, denied her training and unfairly disciplined her all of which created a hostile working environment and ultimately resulted in her constructive discharge. Lesicko also claimed that she had been harassed with sexually suggestive comments which were made toward or in front of her and by sexually oriented materials she claimed were left in her locker and on desks.
Rejecting all of Lesicko’s claims, the court noted that the sexually oriented comments were made nearly seven years prior to Lesicko’s alleged constructive discharge and were therefore time barred. The court further noted that, even if the comments were not time barred, there was no evidence connecting the comments to Lesicko’s constructive discharge. Consequently, the court determined that Lesicko was unable to prevail under the “direct proof” model.
The court further found that Lesicko’s age and gender discrimination claims failed under the “indirect proof” model because Lesicko could not establish that she was meeting CP’s legitimate performance expectations at the time of her alleged discharge and because Lesicko failed to identify any similarly situated male employees or younger employees who were engaged in similar misconduct but received less severe consequences. The court also rejected Lesicko’s claim that she had been constructively discharged noting that “. . . the record before this Court is replete with uncontroverted evidence that it was Lesicko who made the working conditions difficult to bear for her co-workers—creating stress, stirring up turmoil, verbally intimidating them and damaging morale.”
Read the Madison County Record's article about the lawsuit here.
Lesicko v. Conoco Phillips Pipe Line Co., No. 07-cv-0826 (S.D.Ill. Feb. 5, 2009)
The plaintiff in the case, Julie Lesicko, was one of 18 employees working at Conoco Phillip’s (“CP’s”) East St. Louis terminal. Her employment began in June of 1995 and ended in March of 2007. Although Lesicko’s performance was initially good, she began experiencing problems in early 2001 when her position’s shift structure changed and a new supervisor was hired.
Lesicko received verbal and written warnings for misusing sick time, and in 2002, Lesicko made derogatory remarks about her supervisor in front of other employees and became aggressive and confrontational with co-workers. This behavior apparently continued into 2003 and 2004 and negatively impacted the relationships between employees and customers at CP. In September of 2006, CP received a call to its “AlertLine” by an employee complaining that Lesicko’s conduct was creating a hostile workplace. Specifically, it was reported that Lesicko “threatened her co-workers with lawsuits, screamed and cursed at them, cussed and used the ‘f word’ at co-workers and drivers, was abusive to them, was volatile, created turmoil in the building, threatened to get them fired and created a stressful working environment.”
Following an investigation, Lesicko was issued a one day suspension and given a “Final Warning” letter. However, six months later, trouble arose again when Lesicko threatened to beat up a co-worker. Lesicko’s schedule had her off work for eight days following the incident during which time CP conduced an investigation of the incident. Lesicko refused to participate in the investigation, and ultimately delivered a written resignation when she returned to work.
After receiving her Notice of Right to Sue from the EEOC, Lesicko filed a lawsuit against CP claiming that she had been discriminated against based on her gender and age in violation of Title VII and the ADEA. Specifically, Lesicko claimed CP unfairly denied her vacation requests, denied her training and unfairly disciplined her all of which created a hostile working environment and ultimately resulted in her constructive discharge. Lesicko also claimed that she had been harassed with sexually suggestive comments which were made toward or in front of her and by sexually oriented materials she claimed were left in her locker and on desks.
Rejecting all of Lesicko’s claims, the court noted that the sexually oriented comments were made nearly seven years prior to Lesicko’s alleged constructive discharge and were therefore time barred. The court further noted that, even if the comments were not time barred, there was no evidence connecting the comments to Lesicko’s constructive discharge. Consequently, the court determined that Lesicko was unable to prevail under the “direct proof” model.
The court further found that Lesicko’s age and gender discrimination claims failed under the “indirect proof” model because Lesicko could not establish that she was meeting CP’s legitimate performance expectations at the time of her alleged discharge and because Lesicko failed to identify any similarly situated male employees or younger employees who were engaged in similar misconduct but received less severe consequences. The court also rejected Lesicko’s claim that she had been constructively discharged noting that “. . . the record before this Court is replete with uncontroverted evidence that it was Lesicko who made the working conditions difficult to bear for her co-workers—creating stress, stirring up turmoil, verbally intimidating them and damaging morale.”
Read the Madison County Record's article about the lawsuit here.
Lesicko v. Conoco Phillips Pipe Line Co., No. 07-cv-0826 (S.D.Ill. Feb. 5, 2009)
Saturday, February 7, 2009
Plaintiff’s “Mosaic of Evidence” Sufficient to Survive Summary Judgment in Title VII Case
In Hasan v. Foley & Lardner, the Court of Appeals for the Seventh Circuit reversed a District Court’s grant of summary judgment in favor of the law firm Foley & Lardner, finding that a genuine issue of material fact existed as to Foley’s true reason for firing Mr. Hasan.
The plaintiff, Zafar Hasan, is a Muslim of Indian descent and was an associate at the law firm of Foley & Lardner. Mr. Hasan joined Foley in October of 2000 and initially received positive performance evaluations. However, after September 11, 2001, matters changed for Mr. Hasan. On the day of the attacks, another Foley attorney overheard a partner on the firm’s Management and Compensation Committee state that “those people don’t belong here . . . they should kick them all out.” Mr. Foley responded by posting articles on his office door describing Islam as a peaceful religion. In response to the articles, another Foley attorney commented to Hasan that he should be careful “not to upset any sacred cows.” Mr. Hasan’s fortunes continued to worsen and he began to receive negative evaluations in 2002. His billable hours – which had been among the highest in the firm – also dropped off precipitously. In October of 2002, a meeting was held to evaluate the department’s associates. During the meeting, the partner who made the “kicked out” comment was critical of Mr. Hasan’s work (although the attorney had never actually worked with Mr. Hasan). There was testimony that other attorneys at the meeting were influenced by these critical comments. There was also evidence that one of the attorneys who attended the meeting later commented to Mr. Hasan that it was “too bad that those guys took out their religious dispute in Israel on you and had you fired.”
Mr. Hasan sued Foley claiming that he was fired after the September 11, 2001 terrorist attacks because of his religion, race, national origin, and color. Finding in favor of Foley, the trial court concluded that Mr. Hasan “failed to create a ‘convincing mosaic’ of direct or circumstantial evidence that could permit a jury to conclude that Foley intentionally discriminated against him” and entered summary judgment in Foley’s favor. Mr. Hasan appealed.
Reversing the trial court, the Court of Appeals for the Seventh Circuit concluded that Mr. Hasan had in fact presented a sufficient “mosaic” of circumstantial evidence to permit a jury to conclude that Foley terminated Mr. Hasan because of his religion and national origin. In arriving at this conclusion, the appellate court noted that discriminatory comments made by someone who provided input into or influenced the employment decision (as opposed the employee’s direct supervisor) may be relevant. The court also noted that the recency of discriminatory comments to the adverse employment action is relevant to the “total picture of discrimination” but that recency alone may not be viewed as a decisive factor. Finally, the court concluded that “behavior toward or comments directed at other employees in the protected group” (also known as “me too” evidence) is relevant and can support an inference of discrimination.
Hasan v. Foley & Lardner, LLP, No. 07-3025 (7th Cir. Jan. 21, 2009).
The plaintiff, Zafar Hasan, is a Muslim of Indian descent and was an associate at the law firm of Foley & Lardner. Mr. Hasan joined Foley in October of 2000 and initially received positive performance evaluations. However, after September 11, 2001, matters changed for Mr. Hasan. On the day of the attacks, another Foley attorney overheard a partner on the firm’s Management and Compensation Committee state that “those people don’t belong here . . . they should kick them all out.” Mr. Foley responded by posting articles on his office door describing Islam as a peaceful religion. In response to the articles, another Foley attorney commented to Hasan that he should be careful “not to upset any sacred cows.” Mr. Hasan’s fortunes continued to worsen and he began to receive negative evaluations in 2002. His billable hours – which had been among the highest in the firm – also dropped off precipitously. In October of 2002, a meeting was held to evaluate the department’s associates. During the meeting, the partner who made the “kicked out” comment was critical of Mr. Hasan’s work (although the attorney had never actually worked with Mr. Hasan). There was testimony that other attorneys at the meeting were influenced by these critical comments. There was also evidence that one of the attorneys who attended the meeting later commented to Mr. Hasan that it was “too bad that those guys took out their religious dispute in Israel on you and had you fired.”
Mr. Hasan sued Foley claiming that he was fired after the September 11, 2001 terrorist attacks because of his religion, race, national origin, and color. Finding in favor of Foley, the trial court concluded that Mr. Hasan “failed to create a ‘convincing mosaic’ of direct or circumstantial evidence that could permit a jury to conclude that Foley intentionally discriminated against him” and entered summary judgment in Foley’s favor. Mr. Hasan appealed.
Reversing the trial court, the Court of Appeals for the Seventh Circuit concluded that Mr. Hasan had in fact presented a sufficient “mosaic” of circumstantial evidence to permit a jury to conclude that Foley terminated Mr. Hasan because of his religion and national origin. In arriving at this conclusion, the appellate court noted that discriminatory comments made by someone who provided input into or influenced the employment decision (as opposed the employee’s direct supervisor) may be relevant. The court also noted that the recency of discriminatory comments to the adverse employment action is relevant to the “total picture of discrimination” but that recency alone may not be viewed as a decisive factor. Finally, the court concluded that “behavior toward or comments directed at other employees in the protected group” (also known as “me too” evidence) is relevant and can support an inference of discrimination.
Hasan v. Foley & Lardner, LLP, No. 07-3025 (7th Cir. Jan. 21, 2009).
Wednesday, February 4, 2009
Court Conditionally Certifies Multi-State Class in Overtime Action Against Commonwealth
In Jost v. Commonwealth Land Title Insurance Company, 2009 WL 211943, No. 4:08CV734 (E.D.Mo. Jan. 27, 2009), four former St. Louis area escrow officers sued Commonwealth under the Fair Labor Standards Act claiming that they were encouraged to work, but not report, overtime. The plaintiffs sought conditional certification of their case as a nationwide collective action so that they could notify other past and present Commonwealth employees of the opportunity to “opt in” as plaintiffs in the litigation.
In support of their request, the plaintiffs submitted affidavits alleging that managers of Commonwealth’s St. Louis offices actively encouraged unpaid, unreported overtime. Plaintiffs also submitted evidence of similar practices in Commonwealth offices outside of Missouri.
The court declined to certify a nationwide class primarily because Commonwealth had a written policy requiring employees to accurately report all hours worked and barring management from requiring any employee from working off the clock. Additionally, the court found that plaintiffs failed to present any evidence suggesting that supervisors nationwide disregarded the written overtime policy.
However, the court concluded that the plaintiffs’ affidavits and deposition testimony were sufficient to support conditional certification of a class of all residential escrow officers (or those whose job it was to close residential loans or prepare loan paperwork for residential closings) who worked in Commonwealth’s offices in Missouri, Michigan, Kansas, Wisconsin, and Nebraska from May 21, 2005 to the present.
In support of their request, the plaintiffs submitted affidavits alleging that managers of Commonwealth’s St. Louis offices actively encouraged unpaid, unreported overtime. Plaintiffs also submitted evidence of similar practices in Commonwealth offices outside of Missouri.
The court declined to certify a nationwide class primarily because Commonwealth had a written policy requiring employees to accurately report all hours worked and barring management from requiring any employee from working off the clock. Additionally, the court found that plaintiffs failed to present any evidence suggesting that supervisors nationwide disregarded the written overtime policy.
However, the court concluded that the plaintiffs’ affidavits and deposition testimony were sufficient to support conditional certification of a class of all residential escrow officers (or those whose job it was to close residential loans or prepare loan paperwork for residential closings) who worked in Commonwealth’s offices in Missouri, Michigan, Kansas, Wisconsin, and Nebraska from May 21, 2005 to the present.
Monday, February 2, 2009
Court Awards Attorney's Fees in Excess of Damages in FLSA Case
In Urnikis-Negro v. American Family Property Services, Inc., No. 06 C 6014, Jan. 26, 2009 (N.D. Ill. 2009), Ms. Urnikis-Negro sued her former employer and two of its principals for $90,000.00 in unpaid overtime wages under the Fair Labor Standards Act. In addition to the unpaid overtime, Ms. Urnikis-Negro asked that her damages be doubled under the FLSA’s liquidated damages provision. The court found in Urnikis-Negro’s favor on the question of liability, but concluded that she worked far fewer hours of overtime than she claimed at trial. Pursuant to the “fluctuating hours” method set forth in the Department of Labor regulations, the court awarded Urnikis-Negro $12,233.00 in unpaid overtime, and doubled the amount to $24,466.00.
Urnikis-Negro then petitioned the court for an award of attorney’s fees and expenses which are also recoverable under the FLSA. Although the court rejected American Family’s argument that the fee award should not exceed the damage award, it acknowledged that it would consider “the degree of success Urnikis-Negro achieved” in determining an appropriate fee award. The court ultimately awarded Urnikis-Negro nearly $60,000.00 less in fees and costs than she was seeking and refused to reduce the award further in light of Urnikis-Negro’s relatively modest recovery. In support of its decision, the court noted that
Urnikis-Negro then petitioned the court for an award of attorney’s fees and expenses which are also recoverable under the FLSA. Although the court rejected American Family’s argument that the fee award should not exceed the damage award, it acknowledged that it would consider “the degree of success Urnikis-Negro achieved” in determining an appropriate fee award. The court ultimately awarded Urnikis-Negro nearly $60,000.00 less in fees and costs than she was seeking and refused to reduce the award further in light of Urnikis-Negro’s relatively modest recovery. In support of its decision, the court noted that
Recoveries in individual FLSA suits like this one typically are modest; they involve cases in which a law-flouting employer has, in essence, tried to nickel-and-dime his employee. With that backdrop, limiting recoverable fees when a plaintiff recovers relatively modest damages in a FLSA case would create a significant disincentive for lawyers to take on such litigation, which, in turn, would undermine Congress’ intent in creating the statute and authorizing private enforcement actions.
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