Judge sides with employee in discrimination case

• Published date: 01 September 2019
• DOI: http://doi.org/10.1002/nba.30655
• Date: 01 September 2019

NONPROFIT BUSINESS ADVISOR SEPTEMBER 2019

10 © 2019 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 loses case over lack

of accommodation

The plaintiff began working as an ofce clerk

for Abington Rockland Joint Water Works in 1999.

Over the years, the facility’s superintendent and his

assistant allegedly developed concerns about the poor

quality of her work.

The plaintiff left the ofce with chest pain in 2013

and didn’t return to work for almost a month.

The plaintiff also took a medical leave of absence

in March 2014, and her psychologist submitted a note

a few days later stating that she was being treated for

depression and was unable to work. However, that

note didn’t indicate when the plaintiff would be able

to return to the ofce.

When the plaintiff returned to work in May, she

promptly took 15 vacation days off.

In August, the plaintiff began a weeklong vacation.

A few days later, her psychologist sent a note indi-

cating that she was unable to work because of both

depression and anxiety. He also indicated that she

would be reevaluated at the end of the month.

The superintendent red the plaintiff in late Au-

gust for the stated reasons of poor performance and

excessive absenteeism.

The plaintiff led a suit claiming a failure to ac-

commodate. She alleged that the necessary accom-

modations that should have been granted were (1)

additional medical leave and (2) being spoken to—and

criticized by—her supervisors in a more gentle way.

The defendant led a motion for summary judg-

ment, contending that the plaintiff could not perform

the essential functions of her job because she had been

absent for 81 work days during the last six months of

employment, and 129 work days during her last year.

The district court judge said the plaintiff hadn’t

presented anything suggesting that unconstrained

medical leave was feasible, and the defendant had

provided evidence that supplying a temporary worker

to ll the plaintiff’s position would have been quite

difcult because it would have required weeks of on-

the-job training.

EMPLOYER WINS ➔ He decided that the

defendant had acted reasonably—after granting

several accommodations to the plaintiff—in denying

her any further medical leave, and insisting that she

be present at work despite her medical conditions.

He acknowledged that a specic warning about the

absenteeism might have been more gentle and in service

of a more fully developed program of progressive

discipline. But he said there was no law indicating that

a warning was either necessary or required.

He also rejected the plaintiff’s argument that she

was entitled to be spoken to less harshly because: (1)

she never requested that form of accommodation and

(2) providing it would be unreasonable. The judge

ruled that even if such an “accommodation” was

mandated by the Americans with Disabilities Act, it

was unreasonable to require the defendant to either

turn a busy workplace into a stress-free environment

or to avoid all negative feedback.

The judge granted a summary judgment in favor

of the defendant.

[Manning v. Abington Rockland Joint Water Works,

U.S. District Court for the District of Massachusetts,

No. 16-11895, 03/04/2019].

Hostile work environment

Judge sides with employee

in discrimination case

The plaintiff was a black man who became a

director for the U.S. Department of Veterans Affairs

in 2013.

In 2017, he led a formal complaint that a white

supervisor had: (1) made false statements that the

plaintiff’s position was susceptible to a reduction

in force and (2) shown a video to employees at a

farewell party for a departing employee that depicted

a statuette of a monkey that some co-workers had

interpreted as referring to the plaintiff.

The agency’s Ofce of Employment Discrimination

Complaint Adjudication began an investigation into

the plaintiff’s claim about the video, but it took

no action about the alleged “reduction in force”

statement. The department gave as reasons for

dismissing the “reduction in force” issue that (1) no

such action had ever occurred and (2) merely being

told about such a possibility didn’t amount to an

adverse employment action.