Archive for December, 2011

A consent decree agreement entered Thursday in federal court resolves a disability discrimination lawsuit against Wal-Mart Stores Inc., filed by the U.S. Equal Employment Opportunity Commission (EEOC) last year on behalf of former employee Charles Goods, and discrimination claims filed by Goods.

The EEOC took up the Greeneville resident’s case against the retailing giant, claiming in a lawsuit filed in October 2010 that Wal-Mart violated federal law when it fired longtime employee Goods because of a cancer-related disability, and retaliated against him for complaining about the discrimination.

The orders in the decree signed by U.S. District Court Judge J. Ronnie Greer include a provision that Wal-Mart pay $275,000 in full settlement of the claims, including $110,000 in back pay with interest and $165,000 for compensatory damages to Goods.

Back wages are for the years 2009 and 2010.

Wal-Mart was also ordered to conduct anti-disability discrimination training for management and take steps to prevent “further failing to provide reasonable accommodation” to employees with disabilities.

EEOC filed the lawsuit under provisions of the Americans With Disabilities Act (ADA) of 1990 and the subsequent ADA Amendments Act of 2008 (ADAAA), and the Civil Rights Act of 1991.

Goods was hired by Walmart in January 1997 and worked as a forklift operator at the Distribution Center for more than 12 years. In 2005, according to the EEOC civil complaint, he underwent surgery for thyroid cancer.

The surgery severed several nerves and left Goods with limited feeling or strength in his right arm. He remained “a qualified individual with a disability,” the complaint said.

In November 2008, Goods’ supervisor asked him to relieve an employee in the shipping department for a 20-minute break. Goods replied that he could not perform the work because he couldn’t do the manual lifting required there.

He was asked to complete a request for reasonable accommodation, court documents said.

The EEOC complaint demanding a jury trial said that Goods requested reasonable accommodation to continue working in the section of the Distribution Center where he operated a fork lift, adding that he was employed successfully for 12 years, including the three years following his cancer surgery.

Wal-Mart claimed an essential function of Goods’ job “was manual lifting,” the EEOC complaint stated. Goods’ doctor advised Wal-Mart that he could not perform manual lifting.

“In practice, [Wal-Mart] did not require Goods to do any significant manual lifting in order to successfully perform his job,” said the complaint, which claimed the company denied Goods’ requests for reasonable accommodation, asserting that he could not perform essential job functions.

“[Wal-Mart] did not enter into the interactive process to accommodate Mr. Goods’ disability,” the complaint stated, instead placing him on leave “and subsequently discharging him because of his disability.”

Goods was placed on a 90-day leave on Dec. 18, 2008, in response to his request for an accommodation, and denied an appeal before he was advised that “it was his responsibility to find another position that did not have a written requirement of manual lifting.”

He filed a charge of discrimination on May 18, 2009, and was terminated by Wal-Mart on July 16, 2009, “in retaliation for his continuing to request a reasonable accommodation for his disability,” the EEOC complaint stated.

If you believe you have suffered discrimination or job termination due to a disability, feel free to call Scott Behren and the Behren Law Firm for a free consultation.

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Is having a second job at Hooters in order to pay your bills and support your children enough to terminate your employment? Is there a claim for gender or familial status discrimination where a single mother holds this type of job to support her kids? Thess issues are starting to be addressed in the Ft. Myers area in the case of Nicole Zivich.

A high school cheerleader coach in southwest Florida says she was fired because a parent complained about her part-time job at a Hooters restaurant. The 24-year-old Nicole Zivich was fired from Estero High School Nov. 21. Zivich told the Lee County School Board this week that a parent of one of the cheerleaders had sent a flurry of emails complaining about her second job at the popular chicken wing restaurant where waitresses wear tight-fitting uniforms.

Citing a privacy policy regarding personnel issues, the school district has not given a reason for her termination. But school superintendent Joseph Burke said it had nothing to do with her employment at Hooters. She was working under contract as the school’s varsity cheerleading coach.

This matter has created lots of noise for the local school board who has been asked to reconsider its decision. Will keep you posted on how things turn out.

If you believe you have been the subject of sexual harassment or gender discrimination, feel free to contact Scott Behren and the Behren Law Firm for a free consultation.

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It is a violation of the Americans with Disabilities Act to terminate or refuse to consider an employee for a position based upon their disability or based upon a perceived disability. Robert Bush recovered a large jury verdict where his employer treated him differently based upon his heart condition.

A federal jury has awarded a Gillette man $1.2 million in damages in his wrongful termination lawsuit against a heavy-equipment dealer.
The jury found last week that Casper-based Wyoming Machinery Co. violated the Americans with Disabilities Act in terminating Robert G. Bush after he underwent open-heart surgery.

According to a pretrial memorandum filed on behalf of Bush, he began employment with Wyoming Machinery on Sept. 1, 1999, as a tube technician and later as a mechanic working on heavy equipment, including haul trucks at coal mines in Campbell County.
Bush underwent open-heart surgery in October 2006 and was told by his physician not to work for six months and to work only “light duty” when he returned to his job.

The company considered Bush disabled and placed him on long-term disability, according to court records.
Bush returned to work in April 2007 as a heavy-equipment mechanic. But, on the second day back on the job, he suffered what he characterized as a mild heart attack, and he returned to long-term disability.

In August 2007, Bush was contacted about a site coordinator position open at the North Antelope mine. He was 51 years old at the time. He didn’t get that position and wasn’t notified about an opening at another mine that went to a younger, less-qualified employee, the court records said.

Bush was qualified and physically able to handle the site coordinator position, according to the lawsuit.
The company contended the person who got the job had better computer skills than Bush.

Bush was terminated July 15, 2008, based on company policy that an employee cannot be absent from work for more than six months. He had been absent from work for about 21 months with the exception of two days he worked in April 2007, company attorneys wrote.
Wyoming Machinery Co. also said Bush did not suffer a mild attack after he returned to work but had only a muscle problem. And it argued that Bush’s physician never told him that he needed to take time off work to recuperate. The company paid Bush $19,000 in disability benefits before he was terminated.

If you believe you have been the subject of discrimination based upon a disability, feel free to consult with Scott M. Behren and the Behren Law Firm to learn your legal rights.

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Even international law firm Sidley Austin Brown and Wood feels it does not have to comply with age discrimination laws.

The Behren Law Firm an employment litigation firm dedicated to representing employees in the workplace.

The case involved an international law firm who allegedly forced 31 former partners out of their ranks of partnership because of their ages. Although the law firm says it did not force the 31 lawyers out of their firm because of their age, they nonetheless settled out of court and the settlement was approved by a federal judge.

The law firm of Sidley, Austin, Brown and Wood allegedly forced out the plaintiffs in this case under a 1999 firm reorganization. The settlement would mean each former employee would receive roughly $860,000 to $1,835,510, depending on their status at the time they were forced out of the firm. It would also stop the law firm from retiring, reducing, expelling, terminating, or reducing the compensation of the partners and changing the status of partnerships based on age. The firm may also not create or continue to have any formal or informal type of policy that mandates partners retire at a certain age, nor may they have a policy in place that the firm may grant permission for a partner to continue to practice after they have reached a certain age.

In this instance, the EEOC brought suit against the law firm under the federal Age Discrimination in Employment Act, which prohibits age discrimination for those more than 40-years-old.

While it has to be said that the international law firm did have a novel defense, it did not stop the courts from deciding for the plaintiffs. The defense was that partners in a law firm are not considered to be employees under the Age Discrimination in Employment Act.

If you believe you have been the subject of age discrimination, feel free to contact Scott M. Behren and the Behren Law Firm for a free consultation.

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