The New Jersey Employment Law Firm Blog

April 5, 2013

Non-Solicitation Agreement Not Violated by Former Employee’s Facebook Posts, Court Rules

A federal court ruled in favor of a former employee in a key portion of the former employer’s request for a preliminary injunction. Pre-Paid Legal Services, Inc. v. Cahill, No. 12-cv-346, order affirming magistrate’s report (D. Okla., Feb. 12, 2013). The decision is one of the first to address employees’ use of social media versus their contractual obligations to a former employer. The employer alleged that social media activity by the former employee, such as posts to his Facebook page, breached a non-solicitation agreement. The court disagreed, finding that his activities on Facebook and Twitter were not expressly targeted to employees of the former employer, and as such did not violate the specific terms of his non-solicitation agreement.

The defendant, Todd Cahill, worked for Pre-Paid Legal Services, Inc. (PPLSI) in San Diego from 2004 until August 2012. PPLSI sells legal service plans, using a multi-level marketing model that allows sales associates to recruit additional sales associates to work “downline” from them. A sales associate receives commissions for their own sales and those of downline associates. Cahill began as a sales associate, and received a promotion to regional manager in 2008. He signed an “Associate Agreement” when he began working for PPLSI, which included a clause prohibiting him from “proselytiz[ing], recruit[ing], or solicit[ing]” other associates while employed by PPLSI and for two years after termination or departure. Cahill, magistrate’s report at 3 (Jan. 22, 2013).
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April 3, 2013

Restaurant Settles Pregnancy Discrimination Lawsuit with EEOC

by Resnick Law Group, P.C.

A restaurant has agreed to pay $20,000 to a former employee, along with other relief, to settle a pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). EEOC v. Reed Pierce’s, No. 3:10-cv-00541, consent decree (S.D. Miss., Feb. 5, 2013). The lawsuit alleged that the restaurant unlawfully terminated the employee because she was pregnant. The restaurant continues to deny the EEOC’s allegations, but agreed via a consent decree to pay damages, allow injunctive relief, modify its employment policies, and mandate training for its employees.

The complainant worked for Reed Pierce’s, a restaurant in Byram, Mississippi, as a waitress. According to the amended complaint filed by the EEOC, the complainant notified supervisors that she was pregnant in November 2008. She reportedly had an allergic reaction to prenatal vitamins in February 2009, and asked to leave work as a result. The employer had allegedly granted similar requests by non-pregnant employees to leave work because of illness, but it denied her request. She made a similar request to take off from work for a doctor’s appointment in March 2009, but was denied. The employer had allegedly granted requests to leave work for medical appointments for other employees. The complainant received notice of her termination from the employer on March 7, 2009, allegedly because “her pregnancy was interfering with her ability to do her job.” Reed Pierce’s, am. complaint at 3-4 (Oct. 18, 2010). She maintains that she was still able to perform her job duties, but received disparate treatment from her employer because of her pregnancy.
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March 20, 2013

New York City Court Dismisses Lawsuit Alleging Height Discrimination, Holding that Adult Height is Not a Protected Genetic Characteristic

by Resnick Law Group, P.C.

An employer did not violate New York state or city human rights laws by firing an employee because of her height, according to a Supreme Court judge in Queens County. The court ruled in Peterson v. City of New York, et al, 2012 N.Y. Slip Op. 51472(U) (Sup. Ct., Queens Co., Aug. 7, 2012), that the plaintiff’s height was not a “genetic characteristic” protected by state law, as she presented no evidence of a genetic condition creating a risk of future illness or disability. It further found that the plaintiff failed to state a claim for relief under New York City’s civil rights law, which does not include protections for genetic conditions.

The plaintiff was employed by the New York City Parks Department from June 2010 until February 2011. Her job involved cleaning bathrooms and taking out trash at the Lost Battalion Hall in Queens. Of the five people employed at Lost Battalion Hall, the plaintiff claimed she was the shortest. Her supervisor allegedly told her that she was “too short” to do her job and that “there was something medically wrong with her.” Slip op. at *1. She alleges that the supervisor required her to see a doctor, and that he was verbally abusive towards her. The plaintiff claims that she rejected a different job offer from the supervisor on February 9, 2011, after which he fired her. She filed suit against the city and the supervisor, alleging violations of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).
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March 13, 2013

FMLA Claim Dismissed Based on Plaintiff’s Vacation During Leave

by Resnick Law Group, P.C.

The Family and Medical Leave Act (FMLA) allows employees to take unpaid leave for medical conditions or to care for a family member. It also prohibits retaliation by employers for taking leave. A federal court recently dismissed a claim for violation of FMLA rights based on evidence that the plaintiff made false statements to her employer regarding her condition during her leave. Lineberry v. Detroit Medical Center, et al, No. 11-13752, slip op. (E.D. Mich., Feb. 5, 2013). The court held that the employer’s termination of the plaintiff was justified based on the plaintiff’s conduct, which violated the employer’s policy and was not consistent with her stated reasons for needing FMLA leave. Before bringing a case for FMLA violations, or any other employment law claim, employment attorneys should carefully review the case that the employer could make against the plaintiff.

The plaintiff, Carol Lineberry, worked as a registered nurse at Detroit Medical Center (DMC), receiving positive performance reviews. She suffered an injury while moving stretchers on January 27, 2011. A doctor employed by DMC recommended that she not return to work. DMC approved her for FMLA from January 27 to April 27, 2011, and paid her $3,636.57 for short-term disability benefits for the period from March 5 to April 16.

The plaintiff had already planned and paid for a vacation to Mexico before her injury. The doctor approved the vacation, scheduled for February 26 to March 2, saying that the trip would not impede her recovery. During and shortly after her vacation, co-workers reported seeing pictures posted to the plaintiff’s Facebook page of her laying on the beach and riding in a boat, as well as pictures of her holding her grandchildren. She also allegedly described various activities on Facebook that seemed inconsistent with her injured state.
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March 5, 2013

Nurse Sues Hospital for Allegedly Reassigning Her Because of Her Race

by Resnick Law Group, P.C.

A nurse at a hospital in Flint, Michigan is suing her employer for alleged racial discrimination and civil rights violations. Battle v. Board of Hospital Managers of Hurley Medical Center, et al, No. 13-99763, complaint and jury demand (Mich. Cir. – Genesee Co., Jan. 21, 2013). She claims that the hospital reassigned an infant under her care to a different nurse after the infant’s father demanded a nurse who was not African American. The lawsuit, which names the hospital and a supervisor as defendants, asserts causes of action for equal protection violations, violations of state anti-discrimination law, and intentional infliction of emotional distress.

According to her complaint, the plaintiff, Tonya Battle, began working at Hurley Medical Center in June 1988 as a registered nurse (RN) in the hospital’s neonatal intensive care unit (NICU). She alleges that she was caring for an infant in the NICU on October 31, 2012, when the infant’s father asked to speak to her supervisor. The charge nurse then spoke to the father, and Battle allegedly heard him tell the charge nurse that “he did not want any African Americans taking care of his baby.” Complaint at 3. Battle also alleges that the man pulled up his sleeve to display a tattoo that she believed was a swastika. The charge nurse relayed the father’s request to the nurse manager, Mary Osika, who allegedly told the charge nurse to reassign the infant.
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February 27, 2013

Department of Justice Settles Immigration-Related Employment Discrimination Claims Against College

by Resnick Law Group, P.C.

The U.S. Department of Justice (DOJ) announced in January 2013 that it settled a claim of citizenship and national origin discrimination against Houston Community College (HCC), in lieu of filing suit. The DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigated a complaint of hiring discrimination, in the form of requests for specific documentation from non-citizens not requested of U.S. citizens. The OSC concluded that the practice violated the Immigration and Nationality Act (INA), which prohibits employment discrimination based on national origin or lawful immigration status. Under the terms of the settlement agreement, HCC will pay a civil penalty, adopt a new process of verifying employment eligibility, and create a fund to compensate prior victims for lost wages.

According to the settlement agreement between the DOJ and HCC, the OSC received a complaint on March 12, 2012 alleging national origin discrimination and other violations of the INA’s anti-discrimination provisions. The OSC’s investigation concluded that HCC had engaged in a practice, for a period of at least two years, that required non-citizens to produce documents during the hiring process demonstrating work authorization. Job applicants that HCC believed to be United States citizens were not required to produce such documentation during the hiring process. Proof of employment eligibility is normally required after hiring, when the employer must complete Form I-9, the Employment Eligibility Verification document. Although it found HCC’s practices to be discriminatory, it did not find that the complainant was a victim of discrimination.
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February 20, 2013

NYPD Officer’s Widow Sues Supervisor, Saying Sexual Harassment Drove Him to Suicide

by Resnick Law Group, P.C.

A supervisor’s sexual advances drove a New York police officer to take his own life, according to a lawsuit filed by the officer’s widow. The lawsuit names the City of New York, the New York City Police Department (NYPD), and the supervisor as defendants, and alleges that an ongoing pattern of sexual harassment violated the officer’s civil rights.

Officer Matthew Schindler arrived at the 115th Precinct in Queens in March 2011, according to DNAinfo New York. He was assigned as a highway safety officer and reported to Sergeant Christine Hirtzel, also spelled in court documents and some media reports as “Hertzel.” Hirtzel reportedly had direct control over Schindler’s work schedule and duty assignments. She demanded that Schindler engage in sexual relations with her, according to the lawsuit. The lawsuit claims that Hirtzel made preferable shift assignments and other features of employment contingent on continued sexual contact, and that she threatened that Schindler “would suffer tangible detriment” if he refused her demands.

The continued demands allegedly caused Schindler to become depressed. On February 13, 2012, Schindler confronted Hirtzel, according to the complaint, to tell her to stop. He told her at that time that “he would kill himself over the ‘guilt,'” according to the New York Post. She allegedly refused to end the relationship, and she allowed Schindler to leave the station. Hirtzel then contacted a precinct captain, who reportedly tried to call Schindler to “rectify his hostile work environment,” and out of concern that he was suicidal. At around 4:30 p.m., Schindler committed suicide with his service weapon.

DNAinfo reported that Hirtzel told NYPD investigators that the affair was consensual. She claimed that he became distraught on February 13 after she tried to break off the relationship. He “stormed off,” she alleged, and then she contacted the precinct captain to admit the affair. The captain then called Schindler, according to Hirtzel’s report.
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February 20, 2013

Lawsuit Against New Jersey Furniture Store Alleges Sexual Orientation Discrimination

by Resnick Law Group, P.C.

A former employee of a Secaucus, New Jersey furniture store chain has alleging that management discriminated against her based on her sexual orientation and retaliated against her for complaining of a manager’s discriminatory conduct. Perez v. Factory Direct of Secaucus, LLC, et al, No. 2:13-cv-00327, complaint (D.N.J., Jan. 17, 2013). The lawsuit currently claims violations of the Civil Rights Act of 1866 and the New Jersey Law Against Discrimination. An investigation of employment discrimination claims is still underway by the Equal Employment Opportunity Commission (EEOC), and the plaintiff has stated an intent to amend her complaint should the EEOC authorize her to do so.

The plaintiff, Isabel Perez, began working for the defendant, Factory Direct of Secaucus, which operates several Ashley Furniture HomeStore locations, on September 25, 2012. In her position as human resources director, she reported to the defendant Kathy Martin, the Director of People Services and Development, and defendant Eugene Chrinian, the CEO. Perez alleges that, during the interview process for the position with both Martin and Chrinian, both defendants questioned her extensively about her marital status and her religious beliefs. Perez, who is homosexual, preferred to keep such issues private, although she did discuss her religious beliefs briefly.

Perez alleges that Martin made frequent derogatory remarks in her presence about homosexuals, as well as discriminatory remarks about other employees based on their race, ethnicity, gender, or appearance. Perez claims that she brought up her concerns with Martin about Martin’s derogatory comments to employees, as well as Martin’s invocation of her religious beliefs in routine workplace issues. On at least one occasion, Martin allegedly told Perez “to be more understanding of the Company’s ‘culture.'” Complaint at 6. Martin began most meetings with prayers, Perez claims, including “unsolicited ‘laying of the hands’ on [Perez].” Id.
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February 7, 2013

NLRB Rules that Facebook Posts Regarding Coworkers Were Protected Concerted Activity

by Resnick Law Group, P.C.

The National Labor Relations Board (NLRB) ruled that an employer’s termination of five employees over posts to the social media service Facebook violated the National Labor Relations Act (NLRA). In re Hispanics United of Buffalo and Ortiz, Case No. 03-CA-027872, decision and order (NLRB, Dec. 14, 2012). It rejected the employer’s argument that the employees’ posts violated its zero-tolerance policy regarding harassment of other employees. The ruling affirmed an earlier finding by an Administrative Law Judge (ALJ) that the employees’ posts were concerted activity protected by the NLRA.

Marianna Cole-Rivera and Lydia Cruz-Moore were employees of Hispanics United of Buffalo, Inc. (HUB), a nonprofit organization providing assistance to domestic violence victims and others. The two communicated frequently via telephone and text message, and Cruz-Rivera reportedly criticized other coworkers on a regular basis. Cole-Rivera reportedly received a text message from Cruz-Moore on Saturday, October 9, 2010, when neither person was at work, saying that Cruz-Moore intended to report her concerns about other employees’ performance to HUB’s executive director.

After replying to Cruz-Moore via text, Cole-Rivera posted a message to her Facebook page saying that Cruz-Moore felt that other employees “don’t help [their] clients enough,” id. at 2, and asking for other employees’ thoughts. Four HUB employees, all off-duty, responded with comments on the Facebook post. Cruz-Moore complained to the executive director and provided a printout of the post and its comments. The following Monday, the executive director fired Cole-Rivera and the other four employees for violating HUB’s “zero tolerance” policy towards “bullying and harassment.” Id.
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February 5, 2013

Lawsuit Alleges Gender Discrimination After Plaintiff Revealed Transgender Status

by Resnick Law Group, P.C.

A former Ph.D. candidate at a San Francisco university is suing the school for gender discrimination, alleging that faculty and staff began to mistreat him once he revealed that he had undergone sex-reassignment surgery. The cause of action is a rare one, as only a handful of states, including New Jersey and California, allow claims for employment discrimination based on gender identity. New York state law currently does not allow such a claim, but New York City does. A lawsuit filed in New Jersey in 2011 was the first to test this state’s transgender discrimination law. Federal authorities allowed a claim to proceed in 2012.

Kellen Bennett was a candidate for a Ph.D. in clinical psychology at Alliant International University’s California School of Professional Psychology in San Francisco. He says that he received good grades and good recommendations from August 2006, when he started the program, until October 2011, when he revealed his transgender status to a faculty member and several students. Bennett underwent sex-reassignment surgery thirteen years ago, and he has lived as a man ever since. He claims that his reviews suddenly all turned bad, and that a postdoctoral internship he had been promised was no longer available to him. At least one supervisor frequently used anti-transgender slurs in his presence. Bennett also alleges that someone altered his academic records in a way that affected his job search. He completed his degree, but was unable to continue in the program as he had planned. Bennett filed suit against the university for gender discrimination and retaliation last year.
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