The "Gene, Genie"

With all due respects to David Bowie. Earlier this week, the Federal Genetic Information Nondiscrimination Act of 2008 was signed into law. Employers are now prohibited from discriminating against current and prospective employees on the basis of genetic information. In addition, the new law prohibits insurance companies from determining eligibility or making changes to premiums based on genetic information. I continue to be astounded at how long it takes for positive legislation like this to plod through the halls of Congress before it finally gets enacted; apparently, it took over 10 years to do so. I wonder how long it will take for the several States to act similarly.

Death Takes A Holiday ... And Then Some

In Adams v. Verizon New York Inc., et al., 04 Civ. 4314 (S.D.N.Y. - Decided: May 13, 2008), the court granted summary judgment dismissing Plaintiff’s claims as against the employer for breach of a collective bargaining agreement, and as against the Union for violating its duty of fair representation.

The Plaintiff was the administrator of the Estate of her son, a deceased employee of Verizon and a union member. During the course of his employment, the son developed an absentee problem, resulting in numerous, prolonged, and unapproved absences. He was disciplined on several occasions, but to no avail. Indeed, in 1999 he was absent for a total of 59 days. In 2001, he was absent for a total of 177 days. WOW! He was eventually placed in the employer’s Absence Control Program, but continued his absenteeism, albeit to a lesser extent than before. Ultimately, after being advised by his Supervisor that he was going to be suspended for yet another unapproved absence, the son announced that he was leaving and walked out. He left the company premises and did not return.

The Plaintiff alleged, among other things, that the employer breached the collective bargaining agreement by terminating her son’s employment without just cause. She further alleged that the Union violated its duty of fair representation. In granting summary judgment, the court held that the employer reasonably interpreted the son’s actions as an abandonment of his job, constituting just cause for the termination. The court further held that the Union had represented the son fairly in his grievance proceedings and acted within its discretion in declining to bring his claims to arbitration.

It never ceases to amaze me. Here, the employee was absent for 177 days in one year alone, and still there was an allegation that such excessive absenteeism failed to constitute just cause for discharge. Sheesh! In situations such as that in the Adams case, a reality check is in order for both Plaintiff and counsel.

An Alarming Statistic

I read recently where the number of New York City construction projects halted for safety violations has grown to 79% since January, 2008. That's quite a jump. There is debate as to whether those stop work orders are based upon the existence of actual, dangerous conditions or very minor infractions involving paperwork and the like. Apparently, some believe that the New York City Department of Buildings has become exceedingly paranoid after several high-profile accidents (e.g., the recent crane disaster). Owners and contractors complain that the resulting delays are costing them millions of dollars. If there are, in fact, safety issues that must be addressed, then it's time to take action to ensure the safety of workers and the public. On the other hand, if the stop work orders are based on ministerial issues, they may need to be revisited. In either event, guess who will pay ultimately?

It's All In The Timing

In Forde v. Beth Israel Medical Center (06 Civ. 901 - Decided: 4/22/08), the Southern District of New York granted summary judgment to the employer and dismissed the Amended Complaint in a pregnancy discrimination case. The case is interesting because it addresses the issue of the close proximity of employment termination to the Plaintiff's announcement of her pregnancy.

The Plaintiff was employed as the office manager for a staff physician. Apparently, there were significant deficiencies in the Plaintiff’s work performance, including her failures to file transcripts, answer requests for medical records, and to schedule and clear patients for surgeries. Some patients were given the wrong dates for their surgeries, while others were not scheduled for surgery in a timely manner. Numerous complaints were received about the Plaintiff’s work, and she was made aware of her work deficiencies on several occasions.

Plaintiff eventually learned that she was pregnant. She notified her employer of her pregnancy about a week later, after which she was terminated based on her prior poor work performance as well as newly discovered instances thereof. The Plaintiff sued based on allegations that the termination of her employment, made so soon after announcing her pregnancy, constituted unlawful discrimination.

The court granted the Defendants’ Motion for summary judgment dismissing the Amended Complaint. In so doing, the court found that Plaintiff’s poor work performance was generally undisputed and that a legitimate, non-discriminatory reason existed for the Plaintiff’s discharge. The court also found that while timing may be sufficient to establish a discrimination inference, the close proximity of termination to the Plaintiff's announcement of her pregnancy, in and of itself, was insufficient to demonstrate a pretext.

I like this one. In this case, timing is not everything.