Employment Law
| DOI | http://doi.org/10.1002/nba.30121 |
| Published date | 01 October 2015 |
| Date | 01 October 2015 |
10
OCTOBER 2015
NONPROFIT BUSINESS ADVISOR
© 2015 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 nonprots. Nonprots should regularly review
employment laws and their compliance efforts to avert similar issues.
FMLA
Misuse of medical leave results
in dismissal
In March 2010, school nurse Deborah Alexander
applied to the New York City school board for inter-
mittent leave pursuant to the Family Medical Leave
Act. Her stated reason for the leave was to care for her
daughter, who had severe rheumatoid arthritis, and to
escort her to physical therapy. She requested that the
intermittent leave period include every Monday and
Wednesday for several weeks beginning in September.
In August, the board requested a doctor’s note con-
rming her daughter’s medical condition and the need
to both care for and escort her daughter to physical
therapy. After receiving the requested note, the board
approved Alexander’s request.
Two months after returning from the FMLA leave,
Alexander submitted an application to the board for
tuition reimbursement for classes she had completed
in the fall of 2010. As a result, the board ordered
an investigation that revealed that after Alexander’s
daughter had refused to go to physical therapy, she had
instead taken courses at the College of New Rochelle
on Mondays and Wednesdays while on intermittent
FMLA leave. The investigation also established that
she had been involved in an all-day clinical practicum
on most of those days.
In June 2011, the board red her.
Alexander led a suit that claimed that she had been
red in retaliation for taking FMLA leave.
The board led a motion to dismiss.
Alexander argued that the stated termination reason
was actually a pretext for discrimination, because she
submitted her leave application in March 2010 well
before the time she had known what nursing classes
were available and their respective schedules.
However, the board argued that: (1) Alexander had
acknowledged that the leave as approved was for the
purpose of attending to her daughter and taking her
to physical therapy; (2) she never utilized the leave for
its approved purpose; and (3) she used those approved
leave days to complete a college course and clinical
practicum at the College of New Rochelle.
EMPLOYER WINS ➔ District Judge Robert Sweet
said that the board’s decision to discharge Alexander
for using the leave for an unintended purpose could not
be deemed to be retaliation in violation of the FMLA
because the statute did not provide for intermittent
leave to gain an educational benet.
Alexander argued that nobody ever told her that
she had to apprise the board of the change in circum-
stances and stop taking leave. However, the judge re-
jected that argument because the board had published
a regulation on its website relating to FMLA leave
policy, which provided that “should it become appar-
ent that it will be possible to resume service earlier
than the date originally projected, the employee must
notify the principal or ofce supervisor of that fact as
soon as possible.”
Judge Sweet dismissed the case.
[Alexander v. Board of Education of the City School
District of the City of New York, et al., U.S. District
Court for the Southern District of New York, No. 14
Civ. 8553, 05/14/2015].
Retaliation
Former cop can’t prove retaliation
Maurice Burton was a corporal working as a supervi-
sor in the Pennsylvania State Police Bureau of Research
and Development.
Beginning in 2007, his supervisors claimed he was
spending too much time talking with administrator
Pamela Yandrich. Burton contended that their real
problem was that he was black and she was white.
In 2008, Burton began the process of testing for the
rank of sergeant. Upon learning that Lieutenant Wal-
ter Margeson was assigned to score the oral portion of
the exam, Burton objected, believing that Margeson
held a negative view of him because of his relation-
ship with Yandrich. Burton eventually elected to keep
Margeson on the panel and have a consultant examine
the test results. While candidates were required to score
in the top 100 to be eligible for sergeant, Burton was
not promoted because his test score was ranked 244.
Burton remained in his position as supervisor, and
he continued to spend many work hours conversing
with Yandrich. In November, Lieutenant Carl Har-
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