New Jersey Employment Lawyer Blog

On July 27, 2012, a federal judge in New Jersey ruled that submitting an intake questionnaire was enough for an employee to file a discrimination claim with the United States Equal Employment Opportunity Commission (EEOC). The case was filed by Theresa Walker-Robinson, a branch manager for JP Morgan Chase Bank in Lyndhurst, New Jersey. Ms. Walker-Robinson is African-American and 46 years old. She claims her District Manager, Christopher Zardavets, announced he was going to "change the face of the region," and then began to visit bank branches whose mangers were African American women over 40 years old. Ms. Walker-Robinson complained about Mr. Zardavets' conduct, but he allegedly continued to come to her branch and make discriminatory comments about her and unfairly criticized her job performance. JP Morgan fired Ms. Walker-Robinson less than a month after she complained to Mr. Zardavets' boss about the harassment.

Ms. Walker-Robinson filled out and submitted two separate EEOC intake questionnaires. On the forms she claimed JP Morgan fired her because of her age, in violation of the Age Discrimination in Employment Act (ADEA). However, she never filled out or submitted the EEOC's Charge of Discrimination form.

After the EEOC sent Ms. Walker-Robinson a "right to sue letter," she filed a lawsuit including claims of age discrimination, race discrimination, gender discrimination, hostile work environment harassment, and retaliation. JP Morgan then asked the judge to dismiss her lawsuit because she did not submit the EEOC's Charge of Discrimination form.

Under federal law, employees in New Jersey have to file a "charge" of discrimination with the EEOC within 300 days after being fired as a requirement to file a discrimination lawsuit under the ADEA, the Americans with Disabilities Act (ADA), or Title VII of the Civil Rights Act of 1964. However, none of those laws defines the term "charge," or specifically require employees to use the EEOC's Charge of Discrimination form.

In Walker-Robinson v. J.P. Morgan Chase Bank, N.A. (July 27, 2012), the judge ruled that Ms. Walker-Robinson's EEOC questionnaire was a "charge of discrimination. She primarily relied on an EEOC regulation which says that a charge of discrimination must include:

1. Full name, address and phone number of the person making the charge;
2. Full name and address of the person (or company) the charge is against;
3. Facts supporting the discrimination claim, including relevant dates;
4. Number of employees working for the employer (if known); and
5. A statement whether the employee has brought a claim about the same discriminatory practice with any state agency.

The judge also relied on a United States Supreme Court case that says a charge of discrimination also has to ask the EEOC to take action to remedy the discrimination. The judge ruled that Ms. Walker-Robinson's EEOC questionnaires met all of those requirements.

The judge also permitted Ms. Walker-Robinson to pursue her claims of gender discrimination, race discrimination, harassment, and retaliation. Even though Ms. Walker-Robinson did not mention those claims in her EEOC questionnaires, the judge found they were related to the same facts as her age discrimination claim, and the EEOC should have addressed those claims during its investigation. The judge therefore denied JP Morgan's motion to dismiss Ms. Walker-Robinson's case.

Continue reading "Filing Questionnaire Can Be Enough to File Discrimination Claim With EEOC" »

Earlier this month, in Lichtenstein v. University of Pittsburgh Medical Center, the Third Circuit Court of Appeals answered several important questions under the Family & Medical Leave Act of 1993 (FMLA). The FMLA is a federal law that requires larger companies to allow qualified employees to take time off for pregnancy, their own serious health condition, or to care for an immediate family member with a serious health condition. The Third Circuit is the federal appellate court that handles appeals from federal court in New Jersey.

What is Enough Information to Request an FMLA Leave?

One issue the court clarified is what an employee is required to say to request an FMLA leave. It ruled that an employee only has to provide the employer enough information for the company to determine that the FLMA might apply. At that point, if the employer needs more information to determine whether the FMLA actually applies, it has to ask the employee. Applying that rule, the court found Jamie Lichtenstein had requested an FMLA leave when she told her employer, the University of Pittsburgh Medical Center (UPMC), that (1) her mother was in the emergency room, (2) her mother had been brought to the hospital by ambulance, and (3) she would not be able to work that day. The court ruled that although this was not necessarily enough information for UPMC to determine whether Ms. Lichtenstein was entitled to an FMLA leave, it was enough information that UMPC had to at least ask her for more information.

What Does it Mean to "Care For" a Family Member?

The court also clarified what it means to "care for" a family member with a serious health condition. It explained that "caring" not only includes providing physical care, but also "psychological comfort and reassurance," to a family member with a serious health condition. The court concluded that a jury could find UPMC should have understood the reason Ms. Lichtenstein was at the hospital with her mother was to provide her emotional comfort and reassurance, and therefore was a request for an FMLA leave.

How Can You Prove Your Employer Retaliated Against You For Requesting an FMLA Leave?

The court also discussed how an employee can prove that the decision to fire her was based on her request for an FMLA leave. First, it explained that that an employee can prove this based solely on evidence of the timing between her request for an FMLA leave and the company's decision to fire her, but only if the timing is "unusually suggestive." Since UPMC fired Ms. Lichtenstein within a week after she requested an FMLA leave, the court found that alone could be enough for a jury to find in her favor.

Second, the court explained that even when the timing is not enough by itself to prove the employer fired the employee because she took an FMLA leave, the employee can use other evidence to prove her claim. For example, Ms. Lichtenstein could use the fact that the company stated that her absence on the day when she was at the hospital with her mother was one of the reasons it fired her. She also could use the fact that her supervisor initially claimed she made the decision to fire Ms. Lichtenstein before she requested an FMLA leave, but later testified that she could not remember when she made the decision.

Notably, the court ruled that Ms. Lichtenstein can proceed with her FMLA claim even though she admittedly had numerous unexcused absences and was repeatedly late to work before she ever requested an FMLA leave. It explained that the company had every right to fire her for those reasons. However, it is illegal to consider an employee's FMLA leave as a "negative factor" in a decision to fire an employee, even if there are other factors that led to the decision. Since there is evidence suggesting that Ms. Lichtenstein's FMLA leave could have been the "straw that broke the camel's back," the court ruled that a jury must decide whether UPMC used her FMLA as a negative factor in its decision to fire her.

Continue reading "Court Clarifies Important Issues Under FMLA" »

Recently, a federal judge in the District of New Jersey allowed an employee to continue with his disability discrimination case, largely based on testimony that his boss told him he was "too sick" to do his job. The case, Estate of Fajge v. Dick Greenfield Dodge, Inc., was filed on behalf of Henry Fajge, a car salesman for Dick Greenfield Dodge.

The Facts of the Case

Before he started working for the dealership, Mr. Fajge had a history of mini-strokes (or transient ischemic attacks), coronary artery disease and hypertension, and had suffered a heart attack.
Three weeks after he started the job, he suffered another mini stroke. He was taken to the emergency room by ambulance, and remained in the hospital for five days before his doctor cleared him to return to work.

Within a week after he returned to work, the dealership had to call another ambulance for Mr. Fajge because he was not feeling well. After examining him, the paramedics concluded he was fine. According to Mr. Fajge, his boss called him at home the next day, and said he did not think he was strong or healthy enough to continue doing his job, and as a result they were going to have to "part company." Although his boss denied making that statement, he admitted he called Mr. Fajge to ask him how he was doing. When his boss was asked at his deposition if he calls other employees at home when they are out sick, he answered "No. But most employees don't like nearly drop over dead in front of me two times in a row in less than a month."

Approximately two weeks later, the dealership fired Mr. Fajge. It claimed it did so because of his job performance. For example, his supervisors testified that he wasted a lot of time in his office instead of trying to sell cars, and he was often on the internet, including occasionally looking at pornography at work.

Mr. Fajge then filed a lawsuit in which he alleged the dealership fired him because he is disabled, in violation of the New Jersey Law Against Discrimination (LAD). Unfortunately, Mr. Fajge passed away while the case was pending. However, his estate decided to pursue his discrimination lawsuit on his behalf.

The Judge's Ruling

Without deciding whether Mr. Fajge actually had a disability, the Judge found he was protected by the LAD because the dealership perceived him to be disabled. The LAD prohibits employers from discriminating against employees who they believe are disabled, whether or not they are actually disabled. The Judge also found there was enough evidence for a jury to find the dealership fired Mr. Fajge because it believed he was disabled. This includes Mr. Fajge's testimony that his boss said he did not think he was strong enough to perform his job, and his boss's testimony that Mr. Fajge twice nearly dropped dead in front of him. The Judge also relied on a company document that said it fired Mr. Fajge because of his "inability to work the hours required," and inconsistencies in the dealership's evidence about Mr. Fajge's supposed poor performance. The Judge's ruling paves the way for the case to go to trial, where a jury will decide whether the dealership fired Mr. Fajge because of an actual or perceived disability.

Continue reading "New Jersey Judge Allows Disability Discrimination Case to Proceed" »

The Court of Appeals for the Third Circuit was recently asked if a parent company is responsible for overtime violations committed by its subsidiary. The lawsuit, In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, was brought by a group of assistant branch managers who worked for various locations of Enterprise-Rent-a-Car, which are wholly owned subsidiaries of Enterprise Holdings. The employees claimed Enterprise Holdings was liable for their overtime pay under the Fair Labor Standards Act (FLSA) as a "joint employer." The FLSA is a federal law that requires companies to pay time-and-a-half overtime pay to most "non-exempt" employees.

Joint employment is when two or more employers share control of an employee. Although joint employment is a well-recognized concept, the Third Circuit was addressing this issue for the first time in the context of an FLSA claim. The court created a new four-part test for "joint employment," which it named the Enterprise test.

Under the Enterprise test, in deciding if a party is a "joint employer," courts must consider whether the company has:

(1) Authority to hire and fire employees;
(2) Authority to issue work rules and job assignments, and set conditions of employment like compensation, benefits, and hours;
(3) Authority to supervise and discipline employees on a day-to-day basis; and
(4) Control of employee records such as payroll, insurance, and tax records.

When the court applied this test, it determined Enterprise Holdings was not a joint employer even though there are many indications of joint management. For example, Enterprise Holdings is very involved in running its subsidiaries. It also provides them with administrative services and Human Resources support, including employee compensation guides indicating which employees should be paid salaries, and which employees should be paid by the hour. In addition, both companies are managed by the same Board of Directors. But the Court found that was not enough to make them joint employers.

The court reached this decision because it found Enterprise Holdings did not directly control assistant branch managers working for its subsidiaries, and the guidelines it provided to its subsidiaries were recommendations rather than requirements. Although the court suggested that other factors can also be taken into consideration, in Enterprise it gave those factors very little weight.

Continue reading "The Third Circuit Holds Parent Company Not Responsible For Wholly-Owned Subsidiary's Overtime Violations " »