Court Rules that Accommodations for Indefinite Leave are Not Reasonable

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An Appellate Court in Connecticut recently ruled that a reasonable accommodation for medical leave does not require employers to wait indefinitely for an employee’s medical condition to resolve itself. In the case of Thomson v. Department of Social Services, the plaintiff informed her employer that she would be taking a leave of absence from her work, but did not provide her employer with a time frame for her return. She also did not respond to her employer’s subsequent attempts to reach out to her in order to determine when she planned to return.

According to the Court, this employee essentially asked her employer to hold her position open for her indefinitely while she attempted to recover. The Court, relying on federal laws, found that this was not a reasonable accommodation request. The plaintiff, according to the Court, could not establish a prima facie case of discrimination on these facts.

The employee informed her supervisor that she would be taking “over thirty days” leave depending on whether the lung condition resolved itself. And during a deposition, she confirmed that she did not know how long she was going to be out of work to recover from her health condition.

At the time she left her employment to take leave, the employee filled out a number of forms for her employer. The information she listed on these forms was incoherent and confusing. Her employer even reached out to her by certified mail for additional information, and did not receive a response. When the time came that she was required to submit further information and did not, her employer terminated her. The Court upheld the termination, because the accommodation that she requested was deemed unreasonable.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Clients in Employment Disputes

If you are in need of a Philadelphia employment lawyer, contact Sidkoff, Pincus & Green. To learn more about how our dedicated team of trial attorneys can help you, call 215-574-0600 or contact us online.

Pennsylvania Supreme Court Holds Employer Liable

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Whistleblower Case Brought by Employee

The Pennsylvania Supreme Court recognizes that an employee who brings a claim against his employer under the Pennsylvania Whistleblower Law can hold his employer liable where the employee’s good-faith report of wrongdoing resulted in a retaliatory demotion.

In O’Rourke v. Commonwealth, 566 Pa. 161 (2001), the appellant O’Rourke was employed by the appellee, Pennsylvania Department of Corrections (“Department”). During his employment, O’Rourke became aware of a scheme where thousands of pounds of meat products were being stolen from the culinary department. In response, O’Rourke filed a report regarding this activity of wrongdoing and charged various workers and supervisors with theft and mismanagement. Shortly after transmitting his report, O’Rourke began experiencing a hostile working environment and was demoted from his position at the Department.

The Court ruled that the Department failed to prove that its actions occurred for reasons separate from O’Rourke’s report of wrongdoing, and failed to rebut O’Rourke’s prima facie case. Therefore, O’Rourke was entitled to compensation pursuant to the state’s whistleblower law.

For more information, call our whistleblower lawyers in Philadelphia  at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

E.D.P.A. Overrules Motion to Dismiss

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Claims Plaintiff Alleged Sufficient Facts Demonstrating Pervasive Sexual Harassment

A claim for sexual harassment can be established by proving a hostile or abusive work environment. To prove such a claim, a plaintiff must establish: “(1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability[, where an employer is liable for an employee’s negligent actions or omissions that occur during the course of the employee’s employment].” Hawk v. Americold Logistics, LLC, 2003 U.S. Dist. LEXIS 3445, at *12 (E.D. Pa. 2003).

The trial judge considers the totality of the circumstances when considering a sexual harassment claim. The judge will consider factors such as, the frequency of the harassment, its severity, whether it is physically threatening or humiliating, whether it unreasonably interferes with employee’s work performance, and its effect on the employee’s psychological well-being. For instance, in Hawk, the judge took into consideration that the harassment occurred every day in the form of unwelcome phone calls to the employee, that the harassment was severe by being physically grabbed and shoved against a wall, the employee was humiliated in the sense that she was followed by the harasser around the workplace and was constantly interrupted when conversing with other men co-workers by the harasser, and the employee was emotionally distraught when discussing her harasser during an interview with her employer. The Pennsylvania Eastern District Court found that a jury could “certainly” find that the employee was harassed and that it would detrimentally affect a reasonable person in the same position, denying a motion to dismiss.

For more information, call our sexual harassment lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

Separate Companies can be Joint Employer

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For Purposes of Title VII and §1981 Claims

The Eastern District of Pennsylvania denied a Motion to Dismiss because Plaintiff had pled sufficient facts to show that Defendant companies could be “joint employer[s]” or a “single employer.” Anderson v. Finley Catering Co., 218 F. Supp. 3d 417, 423 (E.D. PA. 2016).

Plaintiff alleges “race discrimination, retaliation, and hostile work environment claims against both Defendants pursuant to Title VII and § 1981.” In Anderson, Plaintiff was the only African American male who worked full time as a cook in Defendants’ catering business. Plaintiff alleges in his Complaint that the management at the catering business made racial jokes and remarks about Plaintiff and gave Plaintiff more undesirable work than they did to other employees who were not African American. After Plaintiff complained to the management about the racial discrimination, some people from the management “called Plaintiff a “snitch” and warned him that he needed to watch what he said.” Following Plaintiff’s complaint, management cut Plaintiff’s hours from 40 to 3 hours per week. After Plaintiff filed for unemployment compensation benefits, management demoted Plaintiff from his position as a cook to dishwasher. Further, following this demotion, management failed to place Plaintiff on a work schedule.

The Court denied dismissal of the case. Defendants argued that the case should be dismissed because Plaintiff’s employer was Union Trust and there was not “sufficient facts” to make the claim that Finely Catering was “liable under either a “joint employer” or “single employer” theory.”  The Court held that the Plaintiff has pled “sufficient facts” at this step in proceedings that “Finley Catering and Union Trust are both owned by Steve Finley, share common management and operations, and have centralized control of labor relations and common financial controls.” Therefore, the Court can “reasonabl[y] infer” that the companies are “either joint employers or a single employer.”

For more information, call our Philadelphia employment lawyers at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

Third Circuit Finds Age Discrimination

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Mandatory Age Retirement Case

The Third Circuit Court of Appeals recognizes that an employer’s forceful retirement of an employee after his or her 65th birthday violates the Age Discrimination in Employment Act. In Maxfield v. Sinclair Int’l, 766 F.2d 788 (3d Cir. 1985), the plaintiff Maxfield was employed by Sinclair International from 1940 until 1980. Shortly before his 65th birthday during a conversation with the company’s founder, Maxfield was questioned about his plans for retirement. When Maxfield vocalized his intentions to work until he was 70 years old, the founder articulated that if Maxfield did not retire on his 65th birthday, Sinclair International would find reason to retire Maxfield. One month later, Maxfield learned that the company decided to “retire him” and would be replacing him with another younger employee.

The Court ruled that Maxfield made a prima facie case of age discrimination by showing that he was replaced by an employee more than 20 years younger, and that Maxfield’s social security benefits could not be set off against damages. Lastly, the court found that Maxfield was entitled to “front pay”, a financial award for future earnings.

For more information, call our employment discrimination lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

EDPA Dismisses Disability Discrimination Claim

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Failure to Exhaust Administrative Remedies

The Eastern District of Pennsylvania recently dismissed Plaintiff’s claim for disability discrimination and claim for retaliation because she failed to exhaust her administrative remedies. McIntosh v. White Horse Vill., Inc., 176 F. Supp. 3d 480 (E.D. Pa. 2016).

Plaintiff alleged religious discrimination, racial discrimination, disability discrimination, and retaliation in her Amended Complaint. In McIntosh, Plaintiff worked as a Licensed Practical Nurse (“LPN”) at a retirement home. Full time LPNs are supposed to work on Sundays. She requested an accommodation to be excused from working on Sundays because she wanted to participate in religious services on those days. She was provided this accommodation. Later, she requested and received an FMLA leave for her surgery. Upon returning from her leave, she requested an accommodation to be excused from working on Sundays. The new Director of Nursing denied this request. Plaintiff alleges that she had to step down from her full time position as an LPN to per diem to be able to attend services on Sundays. In Plaintiff’s Amended Complaint that she filed with the Equal Employment Opportunity Commission (EEOC), she alleged religious discrimination and retaliation, race discrimination and retaliation, violations of the FMLA, violations of the ADA, and violations of the PHRA. Defendant moved to dismiss Plaintiff’s counts under the ADA and PHRA, on the basis that those claims were not procedurally exhausted.

The Court dismissed the claims for disability discrimination and retaliation because the Plaintiff failed to exhaust administrative remedies. The Court reasoned that Plaintiff failed to claim disability discrimination in her Charge to the EEOC. Further, she did not have anything in her Charge to the EEOC that would lead the Court to infer that she was alleging a disability discrimination.

For more information, call our employment lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

NJ Court Holds Employer’s Insurance Did Not Cover Sexual Harassment Claims

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The Federal District Court for the District of New Jersey recently issued an opinion addressing whether an employer’s insurance policy provides coverage for allegations of sexual harassment against an employee.  U.S. Magistrate Judge Cathy Waldor issued an unpublished decision agreeing with defendant Lloyd’s of London that the policy it had underwritten did not cover an ambulance service’s employee’s sexual harassment lawsuit.

The Insurance Policy

Aaron Ambulance’s main insurance policy contained a clause that excluded from professional liability coverage allegations of sexual misconduct, sexual abuse, and child abuse.  It also excluded claims brought by one insured employee against another for discrimination.  However, Aaron Ambulance had purchased a coverage extension, such that claims arising out of sexual misconduct, sexual abuse, and child abuse would be covered, as long as the sublimit of coverage threshold was met.  The policy extension was memorialized in an endorsement.  The terms of the extension were also subject to the condition that the endorsement did not change any other terms or conditions of the policy.

The Claim

An employee of Aaron Ambulance filed a suit against her employer, alleging that she was sexually harassed and abused while employed by Aaron.  Underwriters at Lloyd’s denied coverage to Aaron for the lawsuit, on grounds that the extension of coverage for sexual misconduct did not insure claims filed by employees—it only covered claims of sexual misconduct filed by patients.  Aaron Ambulance claimed that the policy gave rise to a reasonable expectation that the extension would cover employment-related sexual harassment claims.

The Decision

The court ultimately sided with the Underwriters, Lloyd’s of London.  The judge found that the endorsement did not extend to employment practices coverage (claims filed by employees), and was restricted to professional liability (claims filed by patients).  The Court described the alternate reading as generous interpretation, and used a “plain reading” approach in conjunction with references to other exclusions in the policy (excluding claims brought by employees for discrimination).  In other words, the main policy specifically excluded employee claims of sexual harassment, and the coverage extension simply allowed coverage for claims of harassment filed by patients—that is why the two passages (the main form and the extension) were not inconsistent with one another.  On this basis the Court found that Aaron Ambulance could have held no reasonable expectation that the policy extended to cover sexual harassment claims filed by employees.

Philadelphia Sexual Harassment Lawyers at Sidkoff, Pincus & Green P.C. Handle Sexual Harassment Claims

At Sidkoff, Pincus & Green, we represent individuals in all types of employment related disputes and litigation, including claims for sexual harassment. To learn more about how our sexual harassment lawyers in Philadelphia can help you, call us today at 215-574-0600 or contact us online.

Employees Cannot Bypass Title VII

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The Third Circuit is the most recent court to hold that employees cannot pursue Section 1983 claims for claims that also arise under Title VII of the Civil Rights Act.  Under Section 1983, a Plaintiff can proceed directly to court without going through the pre-lawsuit requirements of Title VII and the Americans with Disability Act (ADA).

The Third Circuit is the most recent of eight circuits to have considered whether employees could bypass Title VII and bring a claim against their employer for discrimination under Section 1983 instead.  Each of the eight circuits (including the Third Circuit) that have weighed in has concluded that plaintiff-employees cannot bypass Title VII.  This was a case of first impression in the Third Circuit.

In this case, the plaintiff, Cheryl Williams, filed a lawsuit against her former employer, the Pennsylvania Human Relations Commission (PHRC), and two of her former supervisor’s in their individual capacities as “state actors.”  She alleged that she was discriminated against on the basis of her race and disability.  Williams exhausted all her administrative remedies prior to filing suit.  Because there is no individual liability provision under either Title VII or the Americans with Disabilities Act (ADA), she relied solely upon Section 1983 to attach her two supervisors in the suit.

The Western District of Pennsylvania granted Summary Judgment to her former employer, PHRC, finding that Title VII and the ADA do not create an individually enforceable right under Section 1983.  On appeal to the Third Circuit, the Court affirmed the entry of Summary Judgment in favor of PHRC.  The Court explained that Section 1983 contains no administrative scheme like Title VII and the ADA, which include filing deadlines and limited liability for individual state actors.

According to the Court, by allowing Title VII or ADA claims to be filed as Section 1983 claims would thwart the carefully crafted administrative scheme enacted by Congress, and throw a backdoor open to our federal courts when the front door has been purposefully fortified.  In other words, plaintiffs cannot bypass Title VII to avoid administrative remedies under other provisions.

In short, plaintiffs who seek to recover for workplace discrimination must abide by the full administrative process outlined in Title VII and the ADA.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Actions Filed Under Title VII and the ADA

To learn more about how the Philadelphia employment lawyers at Sidkoff, Pincus & Green can help, call us today at 215-574-0600 or contact us online.  We represent clients in all types of business litigation matters and employment related matters.

FINRA v. Morgan Stanley

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The Financial Industry Regulatory Authority (FINRA) is a non-profit organization that Congress has tasked with ensuring the securities industry operates in accord with government regulations. FINRA operates to ensure that investors receive basic protections. Recently, FINRA ordered the Wall Street investment bank and securities brokerage firm, Morgan Stanley, to pay $13 million in fines and restitution to clients of the bank for failing to properly supervise short-term trades. The regulatory body fined Morgan Stanley $3.25 million, and the remaining nearly $10 million was to be paid back to investors.

According to FINRA, between January 2012 and June 2015, brokers had given thousands of clients poor advice regarding unit investment trusts, or UITs. A unit investment trust pays investors a return based on how the investment performs, not unlike mutual and closed-end funds. They are designed to be held only for a certain period. They are designed to provide capital appreciation and in some cases, dividend income.

Morgan Stanley brokers advised clients to sell unit investment trusts before the products had matured. The brokers then instructed them to roll the trusts over into a new trust, resulting in higher sales charges over time.  After interviewing more than 65 Morgan Stanley employees, FINRA found that the practice was highly questionable. The agency was concerned that the practice was not in the best interests of Morgan Stanley investors.

In addition to finding that individual Morgan Stanley brokers made questionable decisions relating to unit investment trusts, FINRA also held supervisors accountable. Supervisors were not adequately trained to recognize unsuitable short-term rollovers. It also found that Morgan Stanley did not have a proper system in place to detect and stop the negligent transactions before they were carried out. Although Morgan Stanley consented to the agency’s findings, the company had refused to admit or deny the charges and the matter was resolved without admission of guilt on the bank’s behalf.

Philadelphia FINRA Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in FINRA and Securities Actions

Securities and investment management is complicated business. At Sidkoff, Pincus & Green P.C., we help our business clients resolve the most complex and daunting FINRA actions. We also represent investors in all types of securities fraud and misrepresentation actions. To schedule a consultation with a Philadelphia FINRA lawyer, call us today at 215-574-0600 or contact us online.

Pennsylvania Supreme Court Rules

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Only Physicians Can Obtain Informed Consent From Patients

A recent Pennsylvania court ruling found that only physicians, not their subordinates, can obtain informed consent from patients prior to procedures. In Shinal v. Toms, 162 A.3d 429 (Pa. 2017), Plaintiff, Shinal, was a patient of Defendant, Dr. Toms. Shinal had consulted with Dr. Toms to discuss removal of a new tumor growth in her brain. In this consultation, Dr. Toms advised her of the risks associated with surgery and reviewed alternatives including a less aggressive approach called a subtotal resection (safer in the short run) versus a more aggressive approach called a total resection, which would be more dangerous in the short run but offer a better chance of resecting the entire tumor. After this consultation, Shinal decided to have the surgery but had not decided on the approach.

Following this consultation, Shinal’s interactions were entirely with Dr. Toms’ physician assistant. The assistant discussed potential scarring, whether radiation therapy would be necessary, and the date of the surgery. The assistant also answered Shinal’s questions about the craniotomy incision, and met with Shinal to obtain her medical history, conduct a physical and provide her with more information regarding the surgery. In this meeting, Shinal signed an informed consent form granting Dr. Toms permission to perform a resection of her tumor and the risks associated with this procedure. The form also acknowledged that Shinal had discussed the advantages and disadvantages of alternative treatments and that she understood the form’s contents, had an opportunity to ask questions and had sufficient information to give her informed consent to the operation. The form did not address the specific risks of total versus subtotal resection.

When Shinal underwent the procedure, the surgeon conducted a total resection and perforated her carotid artery resulting in hemorrhage, stroke, brain injury and partial blindness. Shinal initiated this medical malpractice lawsuit alleging that Dr. Toms failed to obtain her informed consent for the procedure. Shinal stated that if she had known the alternative approaches and risks of the total resection, she would have chosen the subtotal approach (less aggressive) alternative.

The Supreme Court of Pennsylvania held that a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent, and cannot delegate to others his obligation to provide sufficient information to a patient prior to a procedure. The court ruling additionally stated that “without direct dialogue and two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefit, likelihood of success and alternatives.” The defendant’s actions ultimately violated the Medical Care Availability and Reduction of Error (MCARE) Act.

For more information, call our business lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.