Employment Law

• Published date: 01 December 2015
• Date: 01 December 2015
• DOI: http://doi.org/10.1002/nba.30140

10

DECEMBER 2015NONPROFIT 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 nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Retaliation

Former board member unprotected

by Title VII

John McCabe was a member of the board of direc-

tors of the nonprot Mutual Aid Ambulance Service.

In 2013, employee Richard Ponko led a suit against

Mutual Aid alleging violations of the Age Discrimi-

nation in Employment Act and the Americans with

Disabilities Act. In an interview with an attorney

defending the case, McCabe told him that when the

board members asked the CEO about Ponko, the CEO

had responded, “I have not found a good reason to

re him. Yet.”

At the regular January 2014 board meeting, the

attorney defending Mutual Aid recommended that

McCabe take a leave of absence so as to not hurt its

position in the suit.

McCabe agreed and stepped down until the resolu-

tion of Ponko’s case.

At the regular April board meeting, Mutual Aid’s

By-Laws were amended to require the resignation of

any board member who had moved out of his or her

service area. McCabe—who had moved out of his area

10 years previously—was then removed from the board.

McCabe sued Mutual Aid, claiming Title VII retali-

ation because the board had discriminated against him

for supporting Ponko’s suit.

Mutual Aid led a motion to dismiss.

District Judge Terrence F. McVerry explained that the

anti-retaliation clause of Title VII made it unlawful for

an employer to retaliate against an employee for par-

ticipating in any Title VII investigation or proceeding,

or for opposing an employer’s discriminatory practices.

EMPLOYER WINS ➔ However, he ruled that there

were two reasons that the suit was clearly without merit.

First, Judge McVerry said that Congress did not

intend for the term “employee” in Title VII to include

persons who were simply directors of a corporation

or unpaid inactive ofcers. Since McCabe’s position as

a board member was voluntary, unpaid and unsuper-

vised—and since he did not receive any benets—the

judge ruled that he was never an employee of Mutual

Aid.

The judge also ruled that Title VII was not applicable

because McCabe had not participated in a Title VII

investigation or opposed any Title VII discrimination,

since Ponko’s suit concerned only the ADA and ADEA.

Judge McVerry denied McCabe’s request to change

his complaint to refer to those statutes instead of

Title VII, because a plaintiff who did not qualify as

an “employee” under Title VII also failed to qualify

as an “employee” under both the ADA and ADEA

because the retaliation provisions in all three statutes

contained similar language.

He explained that the ADEA dictated that an indi-

vidual only had a cause of action for retaliation under

that act if he was an “employee” at the time of his ter-

mination. Similarly, he said that it was well-established

that a retaliation claim under the ADA required an

adverse action by the employer either after or contem-

poraneous with the “employee’s” protected activity.

Judge McVerry dismissed the suit.

[McCabe v. Mutual Aid Ambulance Service Inc., U.S.

District Court for the Western District of Pennsylva-

nia, No. 2:15-cv-00562, 08/07/2015].

Hostile Work Environment

Former employee’s testimony saves

her case

In 2007, black female Bernadine Stewart became the

supervisor of a branch ofce for the nonprot Rise Inc.

After she was terminated ve years later, Stewart

led a suit against Rise claiming that several male

Somali-born subordinates had created a hostile work

environment for her by intimidation and also by sexist,

racist and nationalist comments. In support of her case,

Stewart testied in her deposition—and in an afda-

vit—that some of them openly called her a bitch, and

had said that black women had no value. According to

Stewart, they also said that American women were dis-

respectful because they were not sufciently beaten. She

also claimed that one employee threw a le at her, and

that another stood over her in an intimidating manner.

The trial judge granted summary judgment in favor

of Rise.

On appeal, Stewart contended that she had unsuc-

cessfully reported the events to her superiors, and that

her supervisor had sometimes witnessed the insubor-

dination and intimidation.

In its defense, Rise argued that: (1) Stewart’s unsub-