Employment Law

• DOI: http://doi.org/10.1002/nba.30253
• Date: 01 November 2016
• Published date: 01 November 2016

10

NOVEMBER 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.

Disability

Disciplined employee loses her case

When Elizabeth Merrill began working for the

Environmental Protection Agency in 2010, she had

chronic neck pain, debilitating back pain and daily

migraines.

In May 2012, Merrill requested the accommoda-

tion of working from home because of chronic pain.

However, supervisor Kathy Anthony responded on

the same day to deny that request for the stated rea-

son of “conduct issues.” She also wrote a “Letter of

Warning” to Merrill that claimed that Merrill had

been unwilling to cooperate with fellow employee

Corey Perry.

In December, Anthony issued a “Letter of Rep-

rimand” to Merrill for “improper conduct” that

claimed she had failed to respond to Perry’s emails

and had shut her door in Perry’s face. The letter also

claimed Merrill had a pattern of disregarding An-

thony’s emails that requested information.

In July 2013, Anthony suspended Merrill for (1)

absence without leave related to jury service, (2) two

instances of lack of candor related to that jury service

and (3) several instances of failure to follow instruc-

tions between April and June.

Merrill led a suit claiming the adverse employ-

ment actions were in retaliation for requesting the

reasonable accommodation of working from home.

The EPA led a motion for summary judgment,

arguing that its nondiscriminatory reason for deny-

ing Merrill’s accommodation request was employee

misconduct.

Merrill responded that the stated reason was

pretext because: (1) Anthony consistently chose to

believe Perry without any analysis of credibility and

(2) a third co-worker was not punished in any way for

slamming a door while leaving the ofce.

EMPLOYER WINS ➔ However, District Judge

W. Earl Britt said even if Anthony was wrong in

consistently believing Perry, that conduct did not

amount to evidence of pretext. He also ruled there

was a big difference between shutting the door in a

co-worker’s face and slamming the door on the way

out of the ofce. Most importantly, the judge said

the Letter of Reprimand was not restricted to the

door-shutting incident, but also addressed the issue

of failing to respond to emails.

With respect to the suspension, the judge ruled

Merrill’s disagreement with Anthony’s conclusion

was insufcient because there was no evidence that

Anthony did not honestly believe Merrill’s actions

warranted discipline.

With respect to the incident involving jury duty, he

ruled that Anthony had the power to require Merrill

to submit appropriate documentation to substantiate

her request for court leave, and explained that it did

not show pretext because how Anthony perceived

Merrill’s responses on the jury service issue was neces-

sarily subjective. The judge held it was important that

Merrill was also suspended for incidents unrelated

to her jury service that Merrill had not denied. After

ruling that Merrill could have been suspended based

on those other incidents alone, he found that the jury

service issue was irrelevant.

Judge Britt granted summary judgment in favor

of the EPA.

[Merrill v. McCarthy, U.S. District Court for the

Eastern District of North Carolina, No. 7:14-CV-4,

05/04/2016].

Racial Discrimination

‘Slave master’ comments can be

actionable

Randall Thomas—a black man—began working

for Lighthouse Community Development in 2008 in

an unspecied capacity.

In April 2010, supervisor Greg Sterns alleg-

edly called himself a “slave master” in speaking to

Thomas, and made a motion and sound like he was

cracking a whip when he instructed Thomas to get

to work.

Not long after, Sterns purportedly told Thomas

he had prayed to God for guidance about working

with blacks. Sterns also allegedly said to him, “Say

good morning to your slave master” the next day. In

addition, Thomas claimed Sterns glared at him on

many occasions for an unusually long time. However,

Sterns disputed all of those claims.

In May, Thomas led a racial discrimination