SteveK April 9th, 2013

In Lineberry v. Richards, a recent decision of a federal court in Michigan, an employee suffered the consequences of today’s world in which posting pictures of oneself on Facebook is done in an instant, and therefore, can be posted without much thought. By way of background, plaintiff was a Registered Nurse employed by Detroit Medical Center (“DMC”).  In February 2011, DMC granted Plaintiff’s request for leave from work for three months pursuant to the Family and Medical Leave Act (“FMLA”) after plaintiff experienced pain in her lower back and leg from performing her work duties.  While on FMLA leave, plaintiff went on a pre-planned vacation to Mexico approved by her doctor who found that the trip was not as demanding as her job and that it would not hinder her recovery.  While on vacation, plaintiff posted various pictures on Facebook showing herself riding in a motorboat, lying on her side while holding up two bottles of beer in one hand, holding her grandchildren while standing, making trips to Home Depot, etc. Plaintiff’s coworkers saw these pictures on Facebook as they had access to plaintiff’s Facebook page, and thereafter, complained to upper management believing this was a misuse of plaintiff’s FMLA leave. Through email, plaintiff’s supervisor then questioned plaintiff about her vacation to which plaintiff responded that she had to use a wheelchair in the airports because she could only stand for a short period of time.  After being cleared to return to work, DMC brought plaintiff in for an investigative meeting in accordance with company policy when an employee could face termination because they perceived plaintiff to have misused her FMLA leave.  At this meeting, plaintiff admitted she lied and that she had never used a wheelchair on vacation. Shortly thereafter, plaintiff was terminated for violating the company’s dishonesty policy. Subsequently, plaintiff sued DMC and certain management representatives, claiming interference with her FMLA rights and retaliation for taking FMLA leave.  Unfortunately for plaintiff, the court disagreed and dismissed her complaint with prejudice upon granting defendants’ motion for summary judgment.  The Court found that plaintiff’s termination was not based on her FMLA leave, but rather was based on plaintiff’s lying to her employer in violation of their policy against dishonesty.  FMLA requires an employer to restore an employee to their position upon return from leave; however, if an employer can show a lawful reason, i.e., a reason unrelated to an employee’s exercise of FMLA rights, for not restoring an employee to their position upon return from leave, the employer’s actions will not be in violation of the FMLA. That is exactly what occurred here.  The Court explained that the FMLA does not afford an employee greater rights than he/she would have if not on FMLA leave, and therefore, because DMC could terminate any employee for dishonesty whether or not on FMLA leave, plaintiff’s termination was not in violation of the FMLA.  Alternatively, the Court held that DMC also prevailed under the “honest belief” doctrine, which applies where an employer honestly believes, based on particularized facts, that an employee lied and misused FMLA leave and disciplines/terminates such employee based on such belief.  Here, the Court found that DMC honestly believed, based on plaintiff’s Facebook pictures along with her admission to lying about needing a wheelchair as it related to her FMLA restrictions, that plaintiff lied and misused her FMLA leave, and therefore, there was reasonable basis for DMC to terminate her employment. Let Ms. Lineberry’s termination serve as a warning to other Facebook users: be careful what you post.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

Tags: Employment Law, Facebook, Family Medical Leave Act, FMLA

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SteveK February 18th, 2013

In Ewa Fik-Rymarkiewicz vs. University of Medicine and Dentistry of New Jersey, et al., a recent unpublished decision of the Appellate Division, the court affirmed the dismissal of plaintiff’s complaint with prejudice due to plaintiff’s continuous failure to supply information in discovery and repeated noncompliance with related court orders.  By way of background, plaintiff was a post-doctoral fellow employed by University of Medicine and Dentistry of New Jersey (UMDNJ).  Plaintiff alleged that in January 2006 she filed an internal complaint with the company after experiencing harassment and discrimination based on her pregnancy, and then in September 2006, her employment was terminated.  Subsequently, in October 2006, plaintiff filed a complaint against UMDNJ as well as her supervisors alleging, among other things, employment discrimination, hostile work environment and retaliation in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49.  The merits of plaintiff’s complaint, however, were never addressed because of plaintiff’s incessant failure to cooperate with the New Jersey Rules of Court related to discovery, which resulted in the dismissal of her complaint.  This included plaintiff’s refusal to produce certain documentation requested by defendant’s counsel even after multiple court orders, plaintiff’s refusal to answer specific questions during her deposition, plaintiff’s cancellation of her court ordered deposition and plaintiff’s unilateral redaction of information on requested documentation that was deemed relevant by the court.  This case demonstrates the importance of a client’s cooperation with their counsel and, further of the severe consequences to a lawsuit when an attorney fails to take control of their client throughout the litigation process.  It is important for the client to rely upon the experience and knowledge of their attorney with regard to the process and procedures for litigation.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

Tags: Employment Law, LAD, Law Against Discrimination

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SteveK September 21st, 2011

In a decision that may have wide ranging impact on New Jersey employment practice the U.S. Supreme Court adopted the “cat’s paw” theory of liability under the Uniformed Services Employment and Reemployment Rights Act (USERRA), a statute designed to protect those in the military from discrimination. USERRA, is similar to Title VII; therefore, the opinion is likely to be applied to Title VII matters, and potentially to matters arising under the New Jersey Law Against Discrimination (NJLAD). The cat’s paw theory of liability is defined as a situation where one person is used by another to accomplish their purpose. Thus, where the employer (the cat) is influenced by an employee’s discriminatory animus toward another (the cat’s paw) resulting in an adverse employment action, the employer may be liable to the adversely affected employee.
In Staub v Proctor Hospital, the Supreme Court reversed a decision by the Seventh Circuit absolving an employer of liability where the decision maker relied on the report of a supervisor to terminate an employee. The Supreme Court ruled that where the decision maker was influenced by the supervisor’s anti-discriminatory motives (in this case based on the employee’s service in the military), the employer is liable to the terminated employee for damages where a causal connection exists between the employers’ action and the discriminatory motives of the supervisor.
Given the dearth of New Jersey case law on this subject, Courts will need to answer the question whether the decision maker was influenced by the alleged discriminatory motives of a supervisor; an inherently fact specific inquiry. This may cause more cases to survive motions for dismissal or summary judgment in employment cases prior to trial.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

Tags: Discrimination, Employment, Employment Law, NJLAD, termination

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SteveK July 21st, 2011

In a decision unifying the approach to what are referred to as “petition clause” cases, The United States Supreme Court reversed a Third Circuit decision upholding a jury verdict in favor of a public employee. In Borough of Duryea v. Guarnieri the plaintiff, a municipal employee, claimed the municipality retaliated against him after he filed a lawsuit. The employee claimed his lawsuit was a protected activity under the First Amendment because he was “petitioning” the government with his grievances. Under the existing Third Circuit jurisprudence, the trial court agreed and submitted the matter to the jury. The jury returned a verdict against the municipality. The Supreme Court reversed indicating that there is a requirement that in order for an activity to be protected pursuant to the Petition Clause of the First Amendment, the “petition” or grievance, or lawsuit, must involve a matter of public concern. AS a result, the municipality was therefore absolved of liability.  Therefore, if a grievance or complaint by an employee involves an internal matter, the municipality cannot be held liable under the petition clause of the First Amendment.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

Tags: Employment Law, Local Government Law, Municipal

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SteveK November 11th, 2009

On November 4, 2009, in Taylor v. Amcor Flexibles, Inc., the United States District Court, dismissed the claim of a plaintiff asserting that the disclosure of negative employment evaluations to a prospective employer is not inherently discriminatory.

Plaintiff Alonzo Taylor, an African American, began his employment with defendant Amcor Flexibles in early 2005. By November of that year, defendant became displeased with plaintiff’s performance and placed him on a Performance Improvement Plan. After his performance failed to improve, plaintiff was terminated. Over a year later, defendants responded to an inquiry from a prospective employer for the plaintiff indicating that he was released for performance issues. Plaintiff thereafter filed suit for racial discrimination pursuant to Title VII, the New Jersey Law Against Discrimination (NJLAD) and for retaliation under the Conscientious Employee Protection Act (CEPA), as well as common law defamation. The Court employed the McDonnell-Douglas test and concluded  that although plaintiff made out a prima facie case of discrimination, defendant was able to articulate a nondiscriminatory reason for dismissal. The Court stated that it did not wish to second guess that criteria used to evaluate employees, absent a showing that the criteria utilized was inherently discriminatory. The Court, therefore, granted Summary Judgment to the defendant.

 Finally, although defendants did release unfavorable information regarding plaintiff to a possible subsequent employer, the Court found that since plaintiff signed an authorization for the release of the information, the qualified privilege of course of legitimate business functions attached. The Court therefore dismissed plaintiff’s defamation claims.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

Tags: Employment Law

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SteveK October 19th, 2009

On October 15, 2009, the New Jersey Supreme Court broke new ground in Best v. C&M Door Controls, Inc. holding that a Defendant, employer is never entitled to an award of counsel fees pursuant to the “offer of judgment rules” in a case involving either the Conscientious Employer Protection Act (CEPA) or the Prevailing Wage Act (PWA), two New Jersey statutes protecting employees from retaliation if they engage in certain defined protected activity.

Plaintiff, Thomas Best sued his former employer, C&M Door Controls, for violations of the PWA and CEPA, claiming that he was underpaid for certain work covered by the PWA and  that when he complained his employer retaliated.  At some time prior to trial Best made an offer of Judgment, which included fees and costs, in the amount of $100,000; the defendants made counter offers of judgment in the amounts of $15,000 and $25,000 for the respective claims. All offers were rejected. The trial resulted in a defense verdict on the CEPA claim and a jury award of $2600 on the PWA claim.  Plaintiff applied to recover fees pursuant to the fee shifting provisions of the PWA in the amount of $122,000.

 The trial court granted plaintiff fees, but reduced the fee award by 40% based on plaintiff’s “limited success” and also awarded fees to the employer on the failed CEPA claim in accordance with the offer of Judgment rule. The Appellate Division affirmed the fees awarded to the defendants; however, the Supreme Court reversed. The Supreme Court held that a trial judge might consider the offer of judgment made by the employer and unjustifiably rejected by the plaintiff in determining the amount of fees to be awarded to a prevailing plaintiff, if “under all the circumstances” the offer of judgment was reasonable.  The Court ruled, however, that there is no basis to shift the fees to a defendant in such a case.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

Tags: Employment Law

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