employment discrimination

Former Franchisee Can Pursue Discrimination Claim Against Culver’s

A black former franchisee of Culver's may pursue his racial discrimination claim against the fast food restaurant chain, a federal judge has ruled.  Michael Wilbern was one of the first African American franchisees of the chain and claims that Culver's hindered his operation in favor or a white franchisee in a neighboring community.  Specifically, Wilbern alleges that the chain blocked every proposed location which Wilbern had suggested because they were in a predominate African American neighborhood.  Instead, he claims that Culver's persuaded him to open up a restaurant in predominately white Franklin park.  Though he opened the store, it failed due to much higher rent costs.  Culver's denies any liability.  The federal court rejected an opportunity to dismiss the suit.  No trial date has yet been scheduled.

Federal Court Allows Negligence Claim of Unborn Fetus to Proceed Against Mother’s Employer

Sidney Mejia was employed by Catholic Charities of the Archdiocese of Chicago as the Office Manager/Billing Coordinator.  In September, 2012, she informed her supervisor that she was 12 weeks pregnant with her first child.  She also disclosed that she was diagnosed with a high-risk pregnancy.  Mejia claimed that after disclosing that she was pregnant, she was demoted to the position of Program Assistant.  She also claimed that her employer required her to perform manual labor tasks including moving heavy cabinets, moving heavy paper shredding bins and scrubbing the carpets in the office.  On January 23, 2013, Mejia suffered an anxiety attack, and was taken by ambulance to the hospital to avoid premature labor.  On January 28, Mejia went into premature labor.  Mejia was then terminated on February 15, 2013.  She claims that her son suffers from developmental delays because of the premature birth.  She filed suit in federal court, and among other claims, asserted a negligence claim on behalf of her son against the employer for causing the premature birth.  Catholic Charities sought to dismiss the claim, arguing that it was a novel theory.  District Court Judge Robert Dow denied the Defendant's Motion, and allowed the son's claim to proceed, affirming the right of an unborn child to have a personal injury claim against the party who caused it.  The case will now proceed into the discovery phase.

Hollander Law Offices Files Pregnancy Case Against John Barleycorn

Jacquelyn Johnson loved her job as a Bartender at John Barleycorn in Schaumburg.  All that changed however, when she learned that she was pregnant, and informed her employer this past New Year's Eve.  Immediately afterward, Ms. Johnson found that she was no longer scheduled to work the very lucrative parties provided by the bar.  Two weeks later, the General Manager sent her a text message, "Hey, I can't have you work while you are pregnant.  It's too much of a liability for the bar...It's from upper management."  Shocked and saddened, Ms. Johnson filed a charge of discrimination with the EEOC.  On July 17, 2014, The Law Offices of Eugene K. Hollander filed a lawsuit in federal court, alleging pregnancy discrimination.  The story was carried by NBC Chicago.

Madonia Case Attracts International Press

Last Tuesday, we reported that our office filed a new lawsuit, Madonia v. S 37 Management, et. al. The lawsuit alleged violations of the Americans With Disabilities Act (ADA), as well as a COBRA violation after her employer allegedly fired her within days after learning of her stage III esophogeal cancer diagnosis.  We did not expect the national and international interest in the story.  The story was widely reported in the United States, The Daily Mail in the United Kingdom, as well as on websites in Australia, Italy, Estonia and Zimbabwe.  For those who wish to aid Elisa financially to defray medical expense while her case winds through the court system, you can seek to make contributions here: https://www.youcaring.com/keepelisasmiling.

Hollander Law Offices Files New Disability Discrimination Suit

Elisa Madonia was formerly employed by S 37 Management, Inc. as a Customer Service Representative.  During the summer of 2013, her throat began to bother her.  She had taken a few days leave with her employer's permission.  All that changed in mid-October last year.  Madonia, unfortunately, was diagnosed with Stage III esophogeal cancer.  Her oncologist sent a note to her employer regarding the diagnosis.  Six days later, her employer fired her.  They told her that if the health insurance carrier found out that she was working less than full time, then she would be responsible for paying her medical expenses.  In an effort to pressure her to sign a release, which would have waived all of her employment claims, the employer told her that they would pay her COBRA premiums for seven months.  They also demanded an immediate payment for the premium in order to continue her health insurance coverage.  Madonia declined to execute the document, and retained The Law Offices of Eugene K. Hollander to represent her.  On January 29, 2014, the law firm filed suit on Madonia's behalf, alleging violations of the Americans With Disabilities Act and COBRA.  CBS Channel 2 Chicago also covered the story.

Hollander Law Offices Wins Seventh Circuit Decision on FMLA

Beverly Ballard was formerly employed by the Chicago Park District.  In April,, 2006, her mother was diagnosed with end-stage congestive heart failure and began receiving hospice support.  Beverly lived with her mother, Sarah, and cooked for her, administered insulin and other medication, bathed and dressed her, and got her ready for bed.  In 2007, Sarah said that she always wanted to take a family trip to Las Vegas.  A social worker was able to secure funding through the Fairy Godmother Foundation, a nonprofit organization which facilitated opportunities like these for terminally-ill adults.  Beverly requested unpaid leave through her employer.  The Park District ultimately denied the request.  Beverly took her mother on the trip - they engaged in typical tourist activities, but Beverly also provided care to her mother during the trip.  Several months later, the Park District terminated Beverly's employment for exercising unauthorized absences accumulated during her trip.  Beverly filed suit, claiming that the termination violated the Family and Medical Leave Act, ("FMLA").  Her employer sought dismissal of the case, and a federal district court denied the motion, reasoning that Beverly provided care to her mother during the trip.  In a case of first impression in our Seventh Circuit, the federal appellate court held that it did not matter where Beverly cared for her mother, and thus was protected under the FMLA.  The Court upheld the lower court's decision.  Paul Ryan, who handled the matter at the trial court and appellate levels, said, "This is a great victory for employees.  They should not be afraid to care for a loved one, if it involves travel away from home."  We will keep you posted as the case progresses.

Supreme Court Decides Who Is A Supervisor

In resolving a conflict between the federal circuits, the high court determined who constitutes a supervisor for purposes of employment discrimination cases.  Maetta Vance accused a co-worker, Davis, of racially harassing her and retaliating against her at her employment at Ball State University in 2005.  She sued the school under the Civil Rights Act of 1964, claiming that the school should be responsible since Davis was a supervisor.  A federal judge dismissed her claim, holding that Davis could not fire her since she was only a co-worker.  The Seventh Circuit Court of appeals upheld the ruling.   Vance appealed to the Supreme Court.  The Supreme Court sided with the lower courts, ruling that for the university to be liable, Davis must have had the authority to "hire, fire, demote, promote, transfer, or discipline" Vance.  While a disappointment for the employed, the decision will no doubt provide greater clarity in litigating these cases.

Supreme Court Makes It Harder to Recover In Retaliation Cases

In a recent U.S. Supreme Court opinion, the high court raised the bar in litigating retaliation claims.  Dr. Naiel Nassar was employed by the University of Texas Southwestern Medical Center.  He complained of harassment and left his job in 2006 for another job at Parkland Hospital.  The hospital, however, withdrew its job offer when one of the former medical center supervisors opposed it.  He filed suit for retaliation and his claim went to trial.  The jury awarded him $3 million.  The Medical Center appealed, contending that the trial judge improperly charged the jury with a "mixed-motive" instruction, meaning that the jury could find in favor of the Plaintiff if it concluded that retaliation was a motivating factor in his discharge.  The Medical Center argued that the district court should have given a jury instruction stating that the Plaintiff's former employer could only be held liable if the supervisor's decision was the "but-for" basis for the retaliation.  The high court agreed, and reversed the jury verdict.  The court did not rule upon the merits of the case, but sent the case back down for further reconsideration in light of its ruling.  This opinion is in line with the Supreme Court's approach taken in age discrimination cases.  Several years ago, the high court ruled that in age cases, liability would only attach if age was the "but-for" reason taken for a discriminatory action.

Federal Court Paves the Way For Employee to Puruse FMLA Claim Against Non-Employer

In perhaps a case of first impression, a federal district court judge has refused to throw out a lawsuit against a non-employer involving an FMLA claim.  Luis Arango worked for Sysco, a marketer and distributor of food service products.  Work & Well administered time off requests for the company's employees.  Arango claimed that Work & Well falsely told him that he was ineligible for part of the leave, prompting Sysco to fire him.  The court held that Arango was not shielded from the consultant's privilege (which would ordinarily shield it if it gave good faith advice) since there was enough evidence that the defendant did not give honest advice to Sysco.  Work & Well promised to "ensure consistent, complete FMLA compliance" in its contract with Sysco.  The evidence also showed that Work & Well also promised to reduce the number of FMLA leaves and the days off associated with those leaves.  The court did not rule on the merits of the claim, but with the ruling, the case can now proceed to trial.

EEOC Lawsuits Hit Record 20 Year Low

Despite a troubled economy, and counter to conventional wisdom, the federal agency which monitors workplace discrimination, the EEOC, reported that it filed 122 lawsuits nationally for its fiscal year ended September 30.  This figure is far less than usual.  The agency prosecutes workplace violations involving age, race, national origin, gender, pregnancy, sexual harassment, retaliation, and disability discrimination.  The EEOC does not have jurisdiction to prosecute claims that arise under the Family and Medical Leave Act, or FMLA.  Apparently, the agency is focusing on systemic or widespread areas of discrimination, as opposed to pursuing single instances of civil rights violations.  Since 1992, except for one year, the EEOC has filed at least 200 lawsuits.  According to the EEOC's website, it filed an average of 333 lawsuits annually since that time.  Regardless, this number is a fraction of the charges of the total number of charges of employment discrimination filed annually.  For fiscal year 2011, 6,098 charges of employment discrimination were filed in Illinois alone.  Thus, most of the time, aggrieved employees need private attorneys to prosecute their employment discrimination claims on their behalf in court.

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