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 Here are three Short Takes about some interesting sex discrimination cases worth noting:

Verizon Field Technician Wins Hostile Environment Case

A Verizon field technician scored a significant victory in the Second Circuit Court of Appeals last month in the case of Pucino v. Verizon Communications, Inc. Pucino claimed that she was singled out because she was a woman, subjected to vicious treatment, harsh and dangerous work conditions unlike her male counterparts, denied equipment, denied access to public restrooms, forced to use bathrooms without locks, denied overtime, subjected to discipline for conduct that was commonplace among the men, and constantly referred to as a “bitch” and “stupid”.

The district court concluded that the challenged conduct amounted to “nothing more than minor annoyance and inconveniences” and that the allegations were too conclusory and non specific because Pucino stated that the alleged abuse occurred “constantly” and “frequently.”

The Second Circuit Court of Appeals disagreed stating that a trier of fact “might easily find that the harassment and abuse was sufficiently severe to alter Pucino’s working conditions” and that a “plaintiff, need not recount each and every instance of abuse to show pervasiveness” in order to prove a sexual harassment hostile environment case.

The case is particularly important on this last point – that is, that the victim is not required to present a list of specific acts in order to prove a sexual harassment case. Pucino’s testimony that the abuse, which was described in some detail, constant and corroborated by other witnesses, was sufficient to support the claim.

Police Officer Wins Appeal On Denial Of Promotion Sex Discrimination Case

The Fifth Circuit Court of Appeals affirmed a jury verdict last week in favor of a female police officer whose constitutional rights were violated when she was denied a promotion to the position of Detective because of her sex in the case of Lewallen v. City of Beaumont.

Although “a female employee is not required to show that she was a more qualified applicant than her male counterpart" to prove sex discrimination in employment, stated the Court, Tina Lewallen presented evidence that she had numerous attributes that made her more qualified for the Detective position than either of the male applicants that were selected instead of her including :

• a college degree
• more experience
• an outstanding reputation
• extra law enforcement training
• receipt of a highly prestigious award

As the Court stated:

Based on the extensive record evidence of the disparity between the relative qualifications of Lewallen and Breiner, a reasonable jury could find that Lewallen was the better of those two applicants – indeed, the best among all four applicants – and the the Department’s profferred  reasons for choosing the two make applicants ahead of Lewallen were but a gossamer pretext for sex-based discrimination.

In addition to the award to the plaintiff, the appeal affirmed an award of attorneys fees of $428, 421.75.

It’s important to understand that a victory in many civil rights cases includes an award of attorneys fees to the prevailing party. Therefore, Defendant employers in civil rights cases should carefully consider the strength of their defense before taking it to to a jury. This case is a good example of how a relatively small monetary award to the employee can result in a huge loss to an employer.

EEOC Settles Sexual Harassment Class Action Case For 5.8 Million

The Equal Employment Opportunity Commission announced on Thursday that ABM Industries and ABM Janitorial Services will pay $5.8 Million dollars to settle a class action sexual harassment lawsuit involving 21 Hispanic female janitorial workers. The class members asserted that they were victims of varying degrees of unwelcome touching, explicit sexual comments and requests for sex by 14 male co-workers and supervisors, one of whom was a registered sex offender.

According to the EEOC, some of the harassers often exposed themselves, groped female employees’ private parts from behind and even raped one of the victims.  The suit charged that ABM failed to respond to the employees repeated complaints of harassment. The case, filed in 2007, claimed the conduct violated Title VII of the Civil Rights Act of 1964.

images: www.google.com/imgres  bensbiz.mlblogs.com aremploymentlaw.com 

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 Employee Fired For Taking Medical Leave Gets Jury Verdict Reinstated

When does too much time off for an illness justify a termination because of poor attendance? Not every time according to a case decided this past week from the Fifth Circuit Court of Appeals. Here's what happened.

Facts Of The Case

Edward Carmona worked for Southwest Airlines as a flight attendant. He was plagued with psoriasis since he was a teen. As an adult, Carmona developed psoriatic arthritis which causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of his skin.

During flare-ups, Carmona is in great pain and has difficulty walking and moving around. The flare ups occur three or four times every month and each flare-up lasts for three or four days.

In order to get time off as needed for his condition, Carmona filed for intermittent leave under the Family and Medical Leave Act. He was granted FMLA leave between 1998 and 2005, until Southwest determined that he had not worked enough hours to be eligible for renewal.

After Carmona’s FMLA leave expired, he was no longer able to excuse absences caused by his psoriatic arthritis. What followed was a round of progressive discipline which culminated in termination because of an accumulation of points relating to unexcused absences.

The Lawsuit

Carmona sued Southwest claiming that he was terminated because of his disability in violation of  the Americans with Disabilities Act. (ADA)*.

In order to prove an ADA claim, an individual must prove:

• that he was an individual with a disability within the meaning of the ADA
  
• that he was a qualified individual for his job, despite his disability,
  
• and that he was discharged because of his disability

In order to establish a disability, Carmona had to establish that he had:

• a physical or mental impairment that substantially limited one or more major life activities
• a record of such an impairment or
• that he was regarded as having such a impairment.

After a jury trial which Carmona won,  the judge granted judgment against Carmon as a matter of law on the grounds that he did not present sufficient evidence of a disability.  Specifically, the judge found Carmona's intermittent limitations didn’t prove a substantially limiting impairment. In other words, the judge ruled that Carmona was not disabled as a matter of law and took away the verdict.

The Fifth Circuit Court of Appeals disagreed and reversed in it's opinion issued this week. You can read the decision here.

In sum, it held that the verdict should stand because there was sufficient evidence for a reasonable jury to conclude that:

• Carmona had an impairment that substantially limited his major life activity of walking
  

• he was a qualified individual for his job
  

• he was terminated because of his disability

Take Away

This is a really good decision for those who have conditions which cause intermittent disabling flare-ups and need to take time off of work because of it. It will particularly benefit those employees who work for employers not covered by the FMLA (companies with less than 50 employees).

The case also has a helpful discussion on Southwest's core argument --- that Carmona was not qualified for the job because of his poor attendance.

It’s also  good decision for those with cases pending before the ADA amendments Act of 2008. The Court did not apply the amendments retroactively, yet still found for the plaintiff under the narrower pre-amendments law.

The Court also wrote about reinstatement as a remedy -- another topic we don't see very often in ADA opinions.

In sum,  this case is a good result for employees and instructive to employers on the interplay of attendance policies and the ADA.

( *Carmona also had a Title VII claim; the jury found against him on that claim )

Image: blog.cleveland.com

About Ellen

Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen's  a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman's issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net .

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