New Jersey Employment Lawyer Blog

Last month, the Third Circuit Court of Appeals recognized that an employee does not need to have any evidence of discrimination before she can present her case to a jury. The Third Circuit is the federal court that handles appeals from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

The employee who brought the case, Mary Burton, worked for Teleflex Inc. as a Vice President of New Business Development. On June 3, 2008 she got into a disagreement with her supervisor, Edward Boarini. Mr. Boarini claims Ms. Burton resigned during the meeting. In contrast, Ms. Burton claims she mentioned the possibility of resigning, but did not actually resign. At the time, Ms. Burton was 68 years old.

According to Ms. Burton, she did not report to work the next two days because she was upset about the meeting. She then took a preplanned vacation. On the day she was scheduled to return to work, Teleflex sent her a letter indicating it was accepting her resignation.

After her lawyer unsuccessfully attempted to negotiate a severance package, Ms. Burton filed a lawsuit claiming the company's decision to fire her was age discrimination in violation of the Age Discrimination in Employment Act (ADEA), and gender discrimination in violation of Title VII of the Civil Rights Act of 1964. But the District Court dismissed Ms. Burton's case. It found she voluntarily resigned, and therefore could not pursue a wrongful termination claim. It also found that even if she did not intend to resign, there was no evidence the company fired her because of her age or gender, rather than because it believed she had resigned.

But on appeal, the Third Circuit reversed. It found that since there is a factual dispute whether Ms. Burton actually resigned, a jury needs to decide whose version of the events is true. It explained that a jury can conclude Ms. Burton was fired based on her testimony that she never said she was resigning, as well as the fact that she never tendered a resignation letter, never told anyone she was resigning, and the company merely took Mr. Boarini's word that she had resigned without confirming it with her.

The Third Circuit further ruled that a jury can find Teleflex's decision to fire Ms. Burton because of her age or gender even though there is no evidence of discrimination. It explained that one way an employee can prove her case is by pointing out "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the employer's explanation for terminating her. In essence, it ruled that a jury can find Teleflex lied when it claimed it believed Ms. Burton had resigned, and can conclude the reason the company lied was to cover up age or gender discrimination. The Third Circuit's opinion in Burton v. Teleflex Inc. is published, meaning it is a binding legal precedent.

Continue reading "Third Circuit Finds No Evidence of Discrimination Necessary to Prove Discrimination Case" »

Last month, the United States Department of Labor (DOL) clarified when a qualified employee can take a leave under the Family & Medical Leave Act (FMLA) to care for an adult child. As the Interpretation explains, the FMLA permits eligible employees to take up to 12 weeks off from work to care for a son or daughter who has a serious health condition. The FMLA defines a "son or daughter" to include a biological, adopted, or foster child, as well as a stepchild or legal ward. It applies to all children who are under 18 years old. It also applies to children who are at least 18 years old, but only if the child (1) has a disability; (2) is incapable of caring for him or herself due to the disability; (3) has a serious health condition; and (4) needs a parent to care for him because of the serious health condition.

1. The Adult Child Has a Disability

The DOL explained that the first requirement for qualified employees to take an FMLA leave to care for their adult child is the child must have a disability as defined by the Americans with Disabilities Act (ADA). Fortunately, the FMLA adopts the ADA's relatively new and much broader definition under the Americans with Disabilities Amendment Act (ADAAA). That definition includes any physical or mental condition that substantially impairs a major life activity. Major life activities include the ability to care for yourself, perform manual tasks, see, hear, eat, sleep, walk, stand, lift, bend, speak, breath, learn, read, concentrate, think, communicate, or work. As long as it substantially limits a major life activity, a disability can include a pregnancy-related condition or a condition that is episodic or in remission.

2. The Adult Child is Incapable of Self-Care

The second requirement for the FMLA to cover an adult child is the child must be unable to care for him or herself due to the disability. As the DOL explained, this means the son or daughter needs daily assistance or supervision to care for at least three "activities of daily living" or "instrumental activities of daily living." Activities of daily living include grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, or using the post office.

3. The Adult Child Has a Serious Health Condition

The third requirement is that the adult son or daughter has a serious health condition. This means the adult child must have an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. As the DOL's Interpretation recognizes, although the FMLA's definition of a serious health condition is different from the ADA's definition of a disability, many conditions are both a serious health condition and a disability.

4. The Parent Needs to Care for the Adult Child Due to the Serious Health Condition

The final requirement for a qualified employee to be entitled to an FMLA leave to care for an adult child is the adult child must need the parent's care because of the serious health condition. This includes situations in which the parent needs to care for an adult son or daughter who is "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor" due to a serious health condition. It also includes situations in which a parent needs to provide psychological comfort or reassurance to an adult child who has a serious health condition while receiving inpatient or home care.

Continue reading "Department of Labor Explains FMLA Leaves to Care for Adult Children " »

Last week, I discussed Mandel v. M&Q Packaging Corp., a case which recognizes that an employee who sent sexual emails at work still can pursue a sexual harassment claim. Mandel also addresses when an employee can use evidence that someone else experienced harassment to prove her own harassment claim. In other words, it discusses when an employee can offer so-called "me too" evidence in a harassment case.

Mandel recognizes that whether you can use evidence that someone else experienced sexual harassment to try to prove your own case depends on the circumstances. The most important factor is how related or similar the two forms of harassment are to each other. A previous United States Supreme Court case, Spring/United Mgmt. Co. v. Mendelsohn, recognizes that depending on the circumstances, "me too" evidence can be used to prove a discrimination or harassment case even if the harassment involved a different supervisor.

Applying this principle in Mandel, the Third Circuit ruled that the lower court correctly prohibited Ms. Mandel from relying on evidence of harassment toward two other women. It explained that while Ms. Mandel worked for a subsidiary, M&Q Packaging, the other two women worked for its parent company, M&Q Plastic Products, Inc. As a result, the Third Circuit found the harassment the other women experienced was not similar enough to the harassment Ms. Mandel alleged she experience. It therefore ruled that Ms. Mandel cannot use evidence regarding the sexual harassment the other two women experienced to support her own claim.

In other instances, an employee might be able to use evidence that another supervisor harassed someone else at work to prove her claim. Relevant factors are likely to include things like how similar the acts of harassment are to each other, whether the harassment occurred in the same department or building, whether the harassers reported to the same supervisor, how close in time the harassment occurred to each other, and other similarities and differences between the acts of harassment.

Continue reading "It Happened to Me Too - When Can You Prove Harassment With Evidence of Harassment to Someone Else?" »

When an employee brings a harassment claim under federal law, one element of her claim is that she was harmed by the harassment. The Third Circuit Court of Appeals recently recognized that an employee can meet that requirement even though she personally sent emails containing sexual jokes at work.

The employee in question, Shannon Mandel, worked for M&Q Packing Corp. as an Inside Sales and Customer Relations Coordinator. She alleges she experienced sexual harassment including:

• Calling her "woman," "darling," "fluffy," "missy," "hon," "toots," "too female;" and "too emotional;"
• Commenting about her body, clothing, and physical appearance;
• Paying her less than her male peer;
• A male manager telling her a meeting would take place at his house, and they would conclude their part of the meeting in the morning;
• Another male supervisor indicting he fantasizes about her while having sex with his wife; and
• A third male manager asking her on dates even after she told him she was not interested

Previously, the District Court had dismissed Ms. Mandel's sexual harassment claim, finding there was not enough evidence for a jury to conclude she was harmed by the harassment. It relied heavily on the fact that Ms. Mandel frequently used vulgarity and sent emails containing sexual jokes at work. The District Court found this behavior demonstrated Ms. Mandel's "casual ease with this type of workplace behavior." While the court recognized that did not necessarily mean Ms. Mandel had not been harmed by the harassment she experienced, it also concluded she had no evidence she had experienced emotional distress as a result of the harassment, or that the harassment made it more difficult for her to perform her job. It also indicated the only time Ms. Mandel complained about the harassment was after she was called a "bitch," and she made that complaint to a coworker rather than to a supervisor or the Human Resources Department.

In Mandel v. M&Q Packaging Corp., the Third Circuit strongly disagreed. It indicated it was "disturbed" by the District Court's conclusion that no reasonable jury could find Ms. Mandel was harmed by the harassment. It explained that even though Ms. Mandel engaged in unprofessional conduct by using vulgarity and sending sexual jokes, the harassment she experienced was "often worse and apparently uninvited." Further, it disputed the District Court's conclusion that Ms. Mandel only complained about one incident of harassment. In addition, it recognized that Ms. Mandel had stated under oath that the harassment caused her harm. Accordingly, it found a reasonable jury could conclude that Ms. Mandel was harmed by the sexual harassment, and reversed the District Court's decision to dismiss her sexual harassment claim.

Continue reading "Employee Who Sent Sexual Emails at Work Still Can Pursue a Sexual Harassment Claim" »