Employment Law

• DOI: http://doi.org/10.1002/nba.30284
• Date: 01 February 2017
• Published date: 01 February 2017

10

FEBRUARY 2017NONPROFIT BUSINESS ADVISOR

© 2017 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Disability

Employee’s suit goes nowhere

Even though she had psoriasis, Annie Cheung

wrote in her U.S. Postal Service application that she

did not have any kind of medical disorder or physical

impairment. She was hired in 1987 to work at a facil-

ity in Queens, New York, and did not advise USPS

management of any issues relating to her psoriasis

for the rst 15 years on the job.

In March 2009, Cheung’s position was eliminated,

but she was soon assigned to be a mail processing

clerk within the automation area of the same facility.

Cheung claimed her psoriasis required her to wear

leather gloves while working, which was forbidden

by the USPS around machines. Cheung was told she

could not wear her leather gloves while working on

the automated sorting machines, but she was given

the option of wearing nitrile gloves instead. Cheung

was removed from that position when she refused

that option. She eventually agreed she could train

for a job that would allow her to wear leather gloves.

However, she led a suit asserting violations of

the Rehabilitation Act, claiming that her psoriasis

constituted a disability. In her deposition, Cheung

acknowledged that her condition never caused her

to be hospitalized or prevented her from performing

everyday physical activities without gloves.

The USPS led a motion for summary judgment.

EMPLOYER WINS ➔ District Judge Eric Vi-

taliano ruled that her admitted ability to function

normally—without any meaningful risk or difculty—

devastated her claim of being disabled.

He also said that the clear consensus of other

courts was that psoriasis was not a disability per se,

and that functional impairment beyond that condi-

tion itself must be demonstrated to be successful in

pursuing a Rehabilitation Act claim.

The judge also ruled that even if Cheung were dis-

abled for Rehabilitation Act purposes, her repeated

failure to notify the USPS of her allegedly disabling

condition would still warrant a dismissal of her suit.

Cheung contended her supervisors were aware of

her disability because she had submitted notes excusing

her occasional absences and had requested permission

to wear gloves while working. She also claimed her su-

pervisors were aware she had a skin condition because

they observed that her face was red and they did not

see any other parts of her skin because she covered all

of her body with her clothing and gloves.

But the judge ruled it was rmly established that

the Rehabilitation Act did not require employers to

infer an employee’s disability from the kinds of vague

observations that Cheung asserted. In addition, he

ruled that whatever hints Cheung may have dropped,

they were plainly outweighed by her prior explicit

statements to the USPS that she did not have a dis-

ability. Judge Vitaliano granted summary judgment in

favor of the USPS, explaining that all Cheung had to

do was provide an appropriate note from a competent

doctor that conrmed her disability.

[Cheung v. Donahoe, U.S. District Court for the

Eastern District of New York, No. 11-cv-0122,

06/29/2016].

Age Discrimination

Vague allegations don’t support age

discrimination

Michael Franchino was 61 years of age when he

began working for the Roman Catholic Archdiocese

of New York in 2008 as a human resources staff mem-

ber. He was terminated six years later and led a suit

claiming age discrimination. When that complaint was

dismissed by the court, he amended the complaint.

According to Franchino’s amended suit, he was

frequently the brunt of hurtful age-related jokes while

he worked for the archdiocese. Franchino alleged that

one of those jokes was “at age 67, he had four chil-

dren who were barely teenagers.” Another purported

joke was that he would die on the job. In addition,

Franchino claimed that his superiors allowed him

to be depicted as old and decrepit in unattering

cartoons. Franchino alleged that such conduct was

either made or condoned by “higher management,”

or his “superiors,” which included a vice president of

human resources.

The archdiocese led a motion to dismiss.

District Judge Vincent Briccetti rst ruled that by

alleging he was 67 years old when he was terminated,

Franchino was within an age group protected by the

Age Discrimination in Employment Act. However,