BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
June 2000 issue:
By Andrea Johnstone and Anne Scheer*
Fired Employee Who Provided Prior Notice of Resignation Awarded Earned Time
In Consolazio v. Hanover Hill Health Care Center, the New Hampshire Department of Labor awarded an employee who was terminated involuntarily during her four-week resignation notice period 114 hours of accrued unused earned time. The claimant gave her employer four weeks notice of resignation on January 13, 2000, as was required by the employer's policy in order for her to receive unused earned time pay upon termination. However, the employee was later terminated on January 18, 2000, based on the results of an investigation into resident care issues and was not paid her accrued unused earned time. The employer did so in reliance on its written policy that employees terminated "for cause" are not entitled to earned time pay.
The DOL, disagreed with the employer's position that, under these circumstances, the employee was not entitled to paid earned time. It explained: "This Department finds that the employer subsequently terminated the claimant's employment, but this does not preclude the fact that the claimant had already complied with the employer's policy regarding her resignation." Because the employee gave her notice in good faith prior to the employer's decision to terminate she had complied with the prerequisites that entitled her to be paid her unused earned time under the employer's policies.
Personality Conflict Tainted by Age Based Stereotypes
The United States District Court for the District Of New Hampshire in Rand v. New Hampton School, has ruled that an employee met her burden of proof of pretext with evidence that the personality conflict that led to her firing grew out of her supervisor's discriminatory bias based on age.
The plaintiff is a 57-year-old employee who worked at the school for over 5 years with prior positive evaluations. A 27-year-old male was later hired as Head of Admissions and became her immediate supervisor. The two had difficulty working together and she received her first negative performance appraisal under his supervision. Due to these difficulties, the plaintiff's employment contract was non-renewed.
The employer argued that the deterioration of the working relationship was a legitimate non-discriminatory reason for declining to renew her contract. In response, the employee argued that the personality conflict itself was tainted by her supervisor's discriminatory animus, and therefore the personality conflict can not be relied on as a legitimate reason for non-renewing her contract.
The court agreed, finding that a genuine issue of fact exists as to whether the decision to terminate was predicated on a personality conflict caused by age-based animus by her supervisor, and allowed the employee to proceed with her age discrimination claim. The court explained that "an employer does not have to discriminate consciously; it is enough if it does so "because of unthinking stereotypes or bias." Therefore, if the supervisor wrote his negative performance evaluation based in part on his bias or stereotypes about older people, or if these actions led to the employee's firing, then the firing was discriminatory."
This case illustrates how the alleged bias of a supervisor can cloud decisions that are made in reliance on the representations and documentation generated by the supervisor when taking adverse employment action. Before discharging an employee who has experienced a dramatic decline in performance or attitude an inquiry by management into the reasons is advisable. Hopefully, the explanation received will serve to rule out possible discrimination or place the employer in a better position to defend its ultimate decision.
Supervisor's Remarks and Statistical Disparity Sufficient Evidence of Pretext in Gender Discrimination Action
In the U.S. District Court, District of New Hampshire case, Smallwood v. Liberty Mutual Insurance Company, a former employee claims the Company's failure to promote her and compensate her the same manner as equally qualified men amounts to actionable sex discrimination and Equal Pay Act violations.
The facts alleged by the plaintiff in making her claims include: Despite the ever increasing levels of responsibility she was asked to assume, namely the number of employees supervised and budget size, her salary grade was not adjusted, thereby rendering her ineligible for participation in Management Incentive Compensation; a series of men were hired to fill high level positions in her department, they were paid more than she was and were brought in at a higher grade level; some of these hires were assigned duties and responsibilities that she formerly performed; and she was promised a promotion that never happened. The employee also alleged that she had complained to her supervisors and human resources that believed she had encountered a "glass ceiling" and was undercompensated.
The employer's articulated non-discriminatory reason for not promoting the plaintiff was that she lacked the skills and/or qualifications required for those positions. This left the plaintiff with the burden to proffer sufficient evidence that the Company's non-discriminatory reason was a pretext for sex-based discrimination. This burden requires the plaintiff to establish that her employer's explanation is pretextual and that the employer was motivated by discriminatory animus.
The court found the following evidence sufficient to support the claim that the employer's reason is a pretext for discriminatory animus:
1) a comment made by the head of the department that women were "intuitive" and "nuturing" and that aggressive women could be perceived as "bitches" and
2) statistical evidence of a marked disparity in the number of women and men in senior management positions in her department.
Office Party Basis of Workplace Harassment Claim
Think back to the last birthday party, bridal shower or retirement celebration at your company - was there entertainment? Were there jokes or gifts that were off-color or sexual in nature? The office party is an oft forgotten event that needs to be monitored. Keeping the celebration work appropriate is critical to avoid potentially viable claims of sexual harassment. Lahey v. JM Mortgage Services, Inc., is a helpful reminder. In this case, a male employee has been allowed to proceed with a Title VII, hostile environment sexual harassment action based on his female co-workers hiring of a male stripper for an office Christmas party and subsequent posting of pictures of the stripper at the office. Employers are cautioned to communicate with employees that social functions sponsored by or taking place at the Company must be professional and comply with workplace harassment policies.
Is Punctuality an Essential Function of Job?
The 11th Circuit, in Earl v. Mervyns recently found that punctuality is an essential function for a retail store area coordinator. The employee, who suffered from obsessive compulsive disorder, was unable to report to work on time regardless of the assigned shift and had requested that she be allowed to punch in whenever she made it into work and then make up time at the end of her shift.
On the other hand, the 1st Circuit, which covers New Hampshire, recently ruled in Ward v. Massachusetts Health Research Inst. Inc., that punctuality was not an essential function of a data entry position. The employee, who suffered from arthritis, had requested the accommodation of a flexible schedule within which to perform 7.5 hours of data entry each work day. The court declined to find that a flexible schedule was per se unreasonable and rejected the employer's argument that maintaining a regular schedule was an essential function of the job.
Copyright 2000. This article originally appeared in BIA Report, June 2000.
* Anne Scheer is admitted in New Hampshire.
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