“Lawsuit or No Lawsuit:

How To Avoid Seeing Your

Employees Win Big In
Court”

Randall Snapp

Tulsa Equal Employment

Opportunity Coordinators
Association
March 3, 2010

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 Question No. 1:
An employee was transferred to another city shortly after she
became pregnant. Employee alleged that her transfer did not allow
her to use the skills she had developed in her previous job. The
company contended that the transfer was a promotion, with a pay
raise and included more responsibilities. Two months after the
transfer, the employee entered the hospital due to pregnancy
complications. She was placed on FMLA leave and her short term
disability leave ran concurrently with FMLA leave.

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 Question No. 1 cont’d:
She did not return to work within the 12 weeks allowed
for FMLA and the short term disability policy only
provided protection for 180 days. Employee did not
request to be reinstated to work until after 199 days of
leave. At that time she was told that all leave had
expired and she would not be reinstated. She sued for
pregnancy discrimination. Will she succeed?

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 Answer to Question No. 1:
No, according to the 7th Circuit Court of Appeals in LaFary v.
Rogers Group, Inc. (January 12, 2010). The Court held that
Plaintiff must prove that the employer knew she was
pregnant, that she suffered an adverse employment action
and that similarly situated employees outside her protected
class were treated more favorably. The Court found that the
employee could not prove that the company knew that she
was pregnant when it decided to transfer her to another city.
The Court said it was a close question whether the transfer
was an adverse employment action, but did not need to
answer that question since they found there was no proof of
notice. Finally, the Court concluded that the termination was
not illegal discrimination because the company acted in
accordance with its policies and because employee could
not point to a similarly situated non-pregnant employee who
was treated differently.

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 Question No. 2:
A television producer for the Montel Williams show was
terminated shortly after she had surgery for a brain aneurysm.
CBS Studios claimed that Montel Williams had complained
about the employee as early as October, 2006 and that the
decision to terminate employee was made well in advance of
her surgery based upon Mr. Williams’ dissatisfaction with
employee’s show ideas following a meeting in January, 2007.
CBS claims that it did not immediately terminate her contract at
that time because it did not want to “pay her out” for the weeks
remaining on her contract for that season.

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 Question No. 2 cont’d:
On March 29, 2007 the employee had emergency surgery
for a brain aneurysm and did not return to work for the
remainder of season. She was cleared by her physician to
return to work prior to the commencement of the next
season. In May, 2007, employee met with her supervisor
who told her that her contract was not being renewed for
the next season because the show needed someone “at
the top of their game” and someone who could “handle the
pressure” of the job. Employee sued. Will she be allowed
to proceed with her cause of action?

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 Answer to Question No. 2:
Yes, according to the United States District Court for the
Southern District of New York in Primmer v. CBS Studios,
Inc. (September 8, 2009). The Court concluded that the
employee could proceed to trial on the issue of whether she
was “regarded as disabled” under the Americans with
Disabilities Act. The Court found a fact question as to when
CBS actually decided to terminate her contract. The Court
found a lack of any documentation regarding her
performance issues and that the comments made to her in
the May 2007 meeting would allow a reasonable jury to
conclude that the decision not to renew her contract was
motivated, at least in part, on a perceived disability.

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 Question No. 3:
A store manager claimed that her supervisor rubbed her
shoulders and back at times during her training sessions,
called her “baby doll” during a telephone conversation,
accused her of not wanting to be “one of my girls,”
suggested during a long distance telephone call that she
should be “in bed with me and a mai tai in Florida,” and
insinuated that she could go far with the company if she
got along with him. Following these statements, the
supervisor promoted the employee to manage a store.
The employee was later terminated and she claimed that
the termination was as a result of her reporting
management discrepancies in accounting procedures for
cash register shortages. She sued for sex discrimination,
hostile work environment and wrongful termination. Will
she be allowed to proceed with her claims?

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 Answer to Question No. 3:
No, according to the 8th Circuit Court of Appeals in
Anderson v. Family Dollar Stores of Arkansas,
Inc. (September 1, 2009). The Court found that
the alleged harassment was not severe and
pervasive enough to affect a term, condition, or
privilege of employment and did not create an
abusive work environment. The Court also found
that there was no quid pro quo sexual
harassment because the employee did not allege
that she suffered any adverse employment action
as a result of declining any implied or inferred
demand for sexual favors.

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 Question No. 4:
A long term employee for Boeing Company was not
hired by the new company who purchased Boeing
due to the recommendation of his former supervisor
at Boeing. The employee showed that each of the
reasons given by the supervisor for recommending
that the employee not be hired were contradicted by
statements made in the employee’s last performance
review. In addition, the employee established that
each of the individuals who were not recommended
by the supervisor were at least 48 years old.

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 Question No. 4 cont’d:
The employer responded that employee was not
recommended for rehire because he had not been
creating designs on software for 20 years but only
reviewing the work of others, and that the younger
employee who was recommended for the relevant
position had greater skills and slightly higher marks
on the most recent performance evaluation.
Employee sued. Will he be able to take his claims to a
jury?

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 Answer to Question No. 4 :
Yes, according to the 10th Circuit Court of Appeals in
Woods v. Boeing Company (December 8, 2009). The
Court found that there was sufficient evidence that the
company’s reason for recommending against rehire were
pretext for discrimination. Specifically, the company found
that the stated reasons for not recommending rehire were
inconsistent with the statements made on the employee’s
most recent performance review. The Court noted that the
younger employee’s marks were only slightly higher than
the employee’s, to the point that the differences were
negligible and that there was no proof that a new
employer would require the ability to create designs rather
than just checking them.

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 Questions?

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 Presented by:

Randall J. Snapp
Crowe & Dunlevy
(918) 592-9855

randall.snapp@crowedunlevy.com

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