Employment Law

• Date: 01 October 2016
• Published date: 01 October 2016
• DOI: http://doi.org/10.1002/nba.30243

10

OCTOBER 2016NONPROFIT BUSINESS ADVISOR

© 2016 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.

Discrimination

Former employee’s stress simply part

of the job

In 2003, Pamela Duray—a 45-year-old female

with hives, severe depressive disorder, anxiety and

neurological pain syndrome—began working for

the U.S. Department of Homeland Security as a

human resources assistant.

In 2009, she was reassigned, and Janet Adrian

became her new supervisor. In March 2010, Duray

complained to Adrian that she suffered from pain

on a daily basis.

Two months later, Stacy King became Duray’s

supervisor.

In September, Duray sustained an injury to her

foot. Because she had difculty walking, King ar-

ranged for a printer to be placed in Duray’s cubicle.

When it appeared that Duray’s foot injury had

healed, King had the printer removed.

In October, Duray applied for an internal pro-

motion. However, the interview committee recom-

mended two other candidates.

In January 2011, an employee prociency plan

was implemented that outlined each of Duray’s

deciencies and provided ways in which to im-

prove them. Duray challenged the EPP in an email

to King, stating that she was experiencing stress

because she felt singled out, scrutinized and moni-

tored daily.

Shortly after the EPP period ended in April, Du-

ray went on leave pursuant to the Family and Medi-

cal Leave Act. As a result, King did not have the

opportunity to tell Duray she had failed her EPP.

Duray remained on FMLA leave for 12 weeks.

While at home, she provided a letter from her

treating physician that stated she could return to

work with accommodations once her symptoms

were under control. He recommended that she be

allowed to leave work for health appointments, and

that she work only 32 hours per week. The doctor

also listed a host of tasks Duray would not be able

to do. She also applied for disability retirement on

July 10 while still off work, and returned to her job

two weeks later.

On July 28, the director presented Duray with a

Notice of Proposed Removal because she failed the

EPP in April. A nal decision about the proposed

removal was never made because Duray’s applica-

tion for disability retirement was approved.

Duray led a suit asserting discrimination be-

cause of sex, age and disability. One of her claims

was that she became so anxious, depressed and

stressed by the pressure of the EPP and monitoring

that it created a hostile work environment.

The department led a motion for summary

judgment.

EMPLOYER WINS ➔ District Judge Michael

Davis granted the motion, stating that Duray had

not demonstrated that she had been subjected to a

workplace that was permeated with intimidation,

ridicule and insult based on either her age, sex or

disability that was sufciently severe and pervasive

to alter the conditions of her employment. He ex-

plained that the record demonstrated that Duray’s

supervisors did not believe she was satisfactorily

completing her duties, and she was merely moni-

tored and subjected to an EPP in an attempt to

improve her performance.

[Duray v. Johnson, U.S. District Court for the

District of Minnesota, No. 12-2800, 03/17/2016].

Retaliation

Not all ‘harassment’ is unlawful

Carrie Ellison began working for the City of

Birmingham in 1994 as an administrative typist.

In 2009, Police Chief A.C. Roper promoted her

to latent ngerprint examiner.

Ellison reported to her supervisor in 2011 that:

(1) a co-worker had called her the “devil,” (2) an-

other purportedly called her a “baby duck” and (3)

she was accused of damaging a co-worker’s angel

gure.

In 2012, Chief Roper demoted Ellison to admin-

istrative assistant for the stated reason that she had

made too many ngerprint identication mistakes.

After resigning two years later, Ellison led a suit.

One of her claims was that her demotion had been

in retaliation for complaining about harassment.