Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful

Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful
Francis v. City of Meriden, CA2, 129 F.3d 281, Cert. denied, 526 U.S. 1018

Does disciplining law enforcement personnel and firefighters who fail to meet certain “weight/height” guidelines constitute unlawful discrimination under Americans with Disabilities Act of 1990 [ADA] or the Rehabilitation Act of 1973 [RHA]? In the Francis case, the U.S. Circuit Court of Appeals, Second Circuit [New York], ruled that such discipline is not discriminatory.

City of Meriden, Connecticut, firefighter John A. Francis had been suspended for one day because he exceeded the Meriden fire department’s weight/fitness guidelines for firefighters set out in a collective bargaining agreement. Under the terms of the agreement, a firefighter whose weight exceeded the limits had to demonstrate his or her fitness by passing either a body fat test or a physical fitness test. If the firefighter was unable to do so, he or she could be disciplined and subject to disciplinary penalties up to and including termination.

Obesity, except in cases where the obesity relates to a physiological disorder, is not a “physical impairment” within the meaning of the statutes. For the purposes of ADA and RHA, an “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within “normal” range and are not the result of a physiological disorder. [29 C.F.R. Section 1630.2(h)]

To state a claim under the ADA or the RHA, individual must either have an impairment or be able to show that he or she was “regarded as” having such an impairment.” An employer who disciplines an employee for not meeting certain weight guidelines has not unlawfully discriminated against the employee unless it can be shown that either (1) the weight condition is the symptom of a physiological disorder, or (2) that the employer’s disciplinary action was based on the perception that the employee is obese as a result of a physiological disorder (“morbidly obese.”) [See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)]

According to the decision, “a plaintiff ... must allege that the employer believed, however erroneously, that the individual suffered from an “impairment” that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.” The Court said Francis’ action had to be dismissed because “to hold otherwise would open up the ‘regarded as’ prongs of the ADA and the RHA to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered by the Acts.”

The Court said that employers subject to ADA and the Rehabilitation Act may not discriminate against a qualified individual with a disability with respect to the “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

A “physical impairment” under the ADA is defined by regulations issued by the Equal Employment Opportunity Commission (“EEOC”) as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, ... cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. Section 1630.2(h)(1).1. For the purposes of HRA, the same definition is applied [45 C.F.R. Section 84.3(j)(2)(i).2].

The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/heightweight-requirements-in-public.html

Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation

Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]

David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’

On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.

Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.

When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.

Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.

Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."

The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf

N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA

Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Jordan To was employed by US Bank as a Senior Research Clerk.

While employed, To joined the Minnesota National Guard. As ordered, To attended Guard training at Fort Benning for approximately three months. He kept his employer informed of his expected return to work.

When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned. To was told that, to be excused, he would need a doctor's note, which To provided. To provided a doctor's note, which excused his continuing absence from work citing only "illness."

As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well." A second doctor's sought to excuse his continuing absence due to "illness." The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."

Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy. US Bank fired To.

To sued, alleging violation of the FMLA. US Bank moved for summary judgment.
In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.

In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition. An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.

By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition. As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work.

The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave. Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job. That, the Court found, is what happened in this case.

Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures. 29 CFR 825.302(d). The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.

Mr. Bosland Comments: To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may). Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions. Claiming that you are "ill," or "sick," or "fatigued" simply fails that test. Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying.

Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures. To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so. That was not the case with To.

To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83

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