Protected activities under the ADA

Protected activities under the ADA

Foster v Time Warner Entertainment Co., 250 F.3d 1189

The Foster decision demonstrates that an employer violates the ADA if it takes adverse action against a supervisor because he or she arranged for a reasonable accommodation of a disabled worker.

Jane M. Foster sued the Time Warner Entertainment Company. Foster complained that she was terminated for conduct protected by the Americans with Disabilities Act -- her providing a disabled worker under her supervision with a reasonable accommodation of his disability.

The jury agreed, finding that Time Warner had terminated Foster in retaliation for her belief that her actions constituted opposing unlawful discrimination under the ADA. Foster was awarded $75,000 in compensatory damages and $136,000 in punitive damages. The Eighth Circuit Court of Appeals affirmed the decision.

Foster had approved the request submitted by one of the employees she supervised, Kevin Terry, to be excused when he arrived to work late because he suffered from “nocturnal seizures due to epilepsy.” This, Terry said, made it difficult for him to arrive at work consistently on time in the morning because of his seizures. According to the decision, Terry subsequently made up for any lateness by “working late.”

Noting that Time Warner's Human Resources Manual included epilepsy in its definition of disability under the ADA and specifically mentioned a flexible schedule as an example of a reasonable accommodation, Foster approved Terry's request.

The Eighth Circuit said that in order to prevail on her retaliation claim, Foster “need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying conduct violated the law.”

What was the “underlying conduct” in this case? Foster's superiors changed the work rules barring the type of accommodation she had approved for Terry.

Proof for a retaliation claim is not the same as that required in a direct claim of disability discrimination, said the court.

According to the decision, Foster consulted Time Warner's manual in the course of dealing with Terry, and it listed epilepsy as a disability protected under the ADA, and it included a modified work schedule as an example of a reasonable accommodation.

The evidence showed that Foster's previous supervisor, Cathy Hill, had provided Terry with that type of accommodation. When Snyder succeeded Hill and issued a new sick leave policy, Foster repeatedly asked how she should accommodate Terry because she believed the new policy conflicted with the manual. The Circuit Court also noted that “there was sufficient evidence that Snyder admitted to Foster that Terry was covered by the ADA.”

Although there was conflicting evidence presented by Time Warner, the jury chose to believe the proof offered by Foster. Foster's evidence, said the court, was sufficient for the jury to find that Foster had an objectively reasonable belief that Time Warner was intentionally violating the ADA when it decided to terminate Terry as well as when it subsequently fired Foster because of her approval of Terry's request and her challenge to the “new policy.”

There also was evidence that at the meeting at which Foster was terminated she showed her superiors the company manual listing epilepsy as a protected condition under the ADA and that it listed a flexible schedule as a reasonable accommodation.

Thus, said the Circuit Court, Foster established a temporal connection between her requests for accommodating Terry's disability and her termination, permitting an inference of retaliation.

As to Time Warner's challenge to Foster's being awarded punitive damages, the Eighth Circuit commented that punitive damages are appropriate if an employer engaged in intentional discrimination with “malice or reckless indifference to [Foster's] federally protected rights,” citing the U.S. Supreme Court's ruling in Kolstad v American Dental Association, 527 US 526.

According to the decision, Foster's superiors -- whom Time Warner conceded were managers -- “knew and admitted that Terry was covered by the ADA and that the company's own manual listed a flexible schedule as a reasonable accommodation.” Malice may be imputed to the employer if the employee who committed the unlawful act is serving in a “managerial capacity” and “acting within his or her scope of employment.

Part-time service does not qualify as “probationary service” for tenure purposes

Part-time service does not qualify as “probationary service” for tenure purposes

Roese v South Country CSD, 283 AD2d 580

Sonja Roese sued the South Country Central School District in an effort to regain her job as a probationary school librarian after the district had advised her that she was to be terminated. Finding that Roese had been terminated from her position as a probationary school librarian with proper notice before her three-year probationary period ended, the Appellate Division, Second Department dismissed her appeal.

Roese had contended that she had acquired tenure by estoppel because her work as a school librarian during the period from 1991 to 1993, which was designated “part-time” work, was in reality full-time work. Thus, she argued, her service during this period should have counted toward tenure.

Clearly, said the court, “part-time teaching service does not constitute probationary service for the purpose of acquiring tenure,” citing Rosenberg v Board of Education of Westbury Public Schools, 51 AD2d 551.

Holding that “[u]nder the facts and circumstances of this case, [Roese's] work during the period from 1991 to 1993 was part-time,” the court ruled that she did not acquire tenure by estoppel.

Misusing an ability to access confidential information in employer’s database

Misusing an ability to access confidential information in employer’s database

Conflicts of Interest Bd. v. McNair (in PDF), OATH Index No. 1114/11

OATH Administrative Law Judge Faye Lewis found that the employee had violated the City Conflicts law by using her City position of eligibility specialist to access confidential information from the agency’s database.

Judge Lewis found that the employee was using the information to harass a woman she believed was having an affair with her husband.

The employee did not appear at the trial and thus did not offer any evidence in mitigation or explanation.*

The New York City Conflicts of Interest Board a $7,500 fine, as recommended by ALJ Lewis

* Courts have held that the employer may proceed with a disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate. The charging party has the burden of proving the allegations notwithstanding the absence of the individual from the proceeding.