In Bennett v. Dallas Independent School District, 3:11-cv-00393-D (2013), the court granted summary judgment to the Dallas Independent School District (“DISD”) and dismissed Bennett’s claims under the ADA and Uniformed Services Employment and Reemployment Rights Act (“USERRA”) when Bennett refused to take a psychological exam following a disability related reassignment, and then stopped showing up for work entirely without providing any notice.
In Landolfini v. City of Melburn, (2013), the court granted the defendant City summary judgment and dismissed Dominick Landolfi’s claim for discrimination under the USERRA. Landolfini alleged that the City failed to promote him because he is a reservist in the air force and that he might be called away to serve. But the court concluded that his misconduct is what led to his promotion difficulties.
The District Court in Crowell v. Denver Health, (2013) allowed a discharged Colorado paramedic dispatcher’s FMLA and ADA claims to go to trial on cross motions but dismissed her claim for retaliation when the employees’ absences place her in violation of the employer’s “Excessive Absenteeism” policy.
In Maresca v. City of New York, the 2nd Circuit Court of Appeals concluded that the enforcement of NYFD’s zero-tolerance policy for drugs was not a pretext to discharge New York Firefighter Maresca because of his post-traumatic stress disorder (“PTSD”). The 2nd Circuit affirmed summary judgment for the City when Maresca tested positive for cocaine and he was fired soon after and solely because of the test results. Even though Maresca established the prima facie case because he was a sufferer of PTSD, his employer knew he had PTSD, and he was fired, the court found that the employer successfully rebutted the argument.
In Mocic v. Sumner County Emergency Medical Service, 117 FEP Cases 1005 (M.D. Tenn. 2013), a Federal District Court dismissed two of a discharged Tennessee paramedic’s claims, but allowed her claims for sexual harassment and retaliation to proceed to trial. Both of her Title VII claims fail because there wasn’t any actual harm suffered just the appearance of harm. Leading up to her discharge her employer and supervisor taunted her daily, would kick her chair, and tease her about her poorly fitting uniform as her pregnancy progressed. Ultimately she filed a complaint with the EEOC and was fired soon after; her employer asserts that she was discharged because of her inability to lift overweight patients after a shoulder injury.
The Colorado District Court refused to dismiss Hispanic Deputy Sheriff Theresa Garcia’s retaliation, discrimination, and common law civil conspiracy claims in Garcia v. Arapahoe Cnty. Sheriff’s Office, finding that these claims concerned genuine issues of material fact and could not be summarily dismissed.
In Zasada v. City of Englewood, 117 FEP Cases 1454 (2013), the court denied the City’s motion to dismiss Zasada’s claim of a hostile work environment because of his national origin, claim of discrimination based on national origin, and equal protection claims when he was referred to in a derogatory manner and experienced an adverse employment action.
In Furtado v. State Personnel Board, 34 IER Cases 1585 (Cal. Ct. App. 2013), the court upheld a medical demotion of a California Correctional Lieutenant to a support position who was deemed unable to perform the physical aspects of the peace officer job after he failed the baton handling test. A California Government Code barred waiving physical requirements of peace officer jobs, the court held that, and the Lieutenant’s request to be transferred to an “Administrative Lieutenant” position was functionally a request to have those requirements waived, as all corrections officers must be able to perform the physical requirements.
In Cain v. Montgomery County, the Federal Court in Tennessee dismissed the discrimination and retaliation claims of a lieutenant Emergency Medical Technician (“EMT”) who was demoted for passing gas loudly. A Montgomery County Emergency Medical Services employee, Rita Cain, was hired on as an EMT in 1992 and was later promoted her to the supervisory position of lieutenant EMT in 1996. On March 29, 2010, Cain was present during an EMT’s call to dispatch about a patient’s transport. During that incident, Cain was upset that dispatch had not notified EMS of the transport and stated: “You all don't tell me shit.” Then, Cain passed gas loudly enough for the dispatcher to hear over the telephone. When the dispatcher complained, Cain dismissed her flatulence as a joke.
A recent news story that garnered national attention concerned the discipline of a Social Security employee by the Social Security Administration, who reprimanded the employee for excessive workplace flatulence. The reprimand was delivered to the employee in a five-page letter that included a log of representative dates and times when the employee was recorded, “releasing the awful and unpleasant odor" in his Baltimore office. After the employee filed a grievance over the reprimand, the Social Security Administration withdrew it.
