Discrimination

Question 1

Title VII Hostile Work Environment

Answer 1

(1) the employee suffered intentional discrimination because of his or her sex;
(2) the discrimination was severe or pervasive;
(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

Question 2

Third-Circuit same-sex harassment

Answer 2

(1) when “the harasser sexually desires the victim”;
(2) “where the harasser displays hostility to the presence of a particular sex in the workplace”; or
(3) “the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.” Bibby v. Phila. Coca Cola Bottling Co., 269 F.3d 257 (3d Cir. 2001).

Question 3

prima facie retaliation

Answer 3

(1) she engaged in protected activity
(2) she suffered an adverse employment action either after or contemporaneously with the protected activity, and
(3) there was a causal connection between the protected activity and the adverse employment action.
Jones v. Food for All, Inc., 2011 U.S. Dist. LEXIS 74331 (E.D. Pa. July 11, 2011)

Question 4

sexual harassment complaint

Answer 4

Complaints of sexual harassment are “protected if the complainant had a reasonable and good faith belief that the opposed practices were unlawful.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3rd Cir. 1996)

Question 5

reasonable complaint

Answer 5

“a violation of the retaliation provision can be found to be unlawful whether or not the challenged practice ultimately is found to be unlawful.” EEOC Directives Transmittal Number 915.003 (May 20, 1998) (emphasis added); see also Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997)

Question 6

mixed-motive case

Answer 6

Once a plaintiff has met his or her burden of proving that illegal discrimination “played a motivating [or substantial] part in an employment decision,” the employee has won. The only questions is whether the employer can avoid compensatory damages (back pay, emotional distress damages, and punitive damages) by proving that “it would have made the same decision even if it had not allowed [the illegitimate factor] to play such a role.” Price Waterhouse, 490 U.S. at 242, 244-45.

Question 7

causal connection

Answer 7

The existence of a causal link between protected activity and an adverse employment action “must be considered with a careful eye to the specific facts and circumstances encountered.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000)

There are no exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference. Kachmar v. Sungard Data Sys., 109 F.3d 173, 177 (3d Cir. 1997); see also Waddell v. Small Tube Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986).

Question 8

inference of retaliation

Answer 8

An inference of retaliation exists when an employee is terminated shortly after engaging in protected activity. See Fasold v. Justice, 409 F.3d 178 (3rd Cir. 2005) (reversing district court grant of summary judgment because court failed to consider inference created by adverse action within less than 3 months following engagement in protected activity); see also Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994) (concluding that a one and one-half month period between protected activity and adverse action may establish causation). “[W]here the temporal proximity between the protected activity and the adverse action is “unusually suggestive,” it is sufficient standing alone to create an inference of causality and defeat summary judgment.” LeBoon v. Lancaster Jewish Community Center, 503 F.3d 217 (3d Cir. 2007) (emphasis added).

Question 9

pretext

Answer 9

Once a defendant identifies a non-discriminatory reason for termination, a plaintiff can overcome summary judgment nonetheless by demonstrating that “a factfinder would reasonably either:
(1) disbelieve the employer’s articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.”
Jones v. School Dist. of Philadelphia, 198 F. 3d 403, 413 (3d Cir. 1999) citing Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

Question 10

FMLA interference

Answer 10

The FMLA declares it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” in the FMLA. 29 U.S.C. §2615(a)(1).

Question 11

FMLA leave - negative factor

Answer 11

An employer’s “taking of FMLA leave as a negative factor in employment actions . . .” constitutes a per se violation of the FMLA. 29 CFR §825.220(c); see also Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135 n. 9 (3d Cir. 2004)

Question 12

additional FMLA certification

Answer 12

The regulations related to the FMLA state that when “an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider.” 29 C.F.R. §825.307(a).

Question 13

FMLA doctor’s notes

Answer 13

Based on the FMLA regulations, an employer cannot request a doctor’s note for each absence taken pursuant to a medically certified intermittent FMLA leave; such a request would amount to a request for medical recertification for each intermittent FMLA leave, which is expressly prohibited. Oak Harbor Freight Lines, Inc. v. Antti, 2014 U.S. Dist. LEXIS 20203 (D. Or. 2014); see also Police Benev. Association Local No. 249 v. County of Burlington, 2013 N.J. Super. Unpub. LEXIS 106 (N.J. Super. Ct. App. Div. 2013).

Question 14

FMLA in loco parentis

Answer 14

The FMLA provides family leave to care for those who are in loco parentis. 29 U.S.C. §2611(12). In loco parentis, under the FMLA, is defined to “include those with day-to-day responsibilities to care for and financially support a child…[a] biological or legal relationship is not necessary.” 29 C.F.R. §825.113(c)(3); see also Megonnell v. Infotech Solutions Inc., 2009 U.S. Dist. LEXIS 107677 *25 (M.D. Pa 2009) (formal adoption not necessary).

Question 15

FMLA employee notice requirements

Answer 15

To request FMLA leave, “[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave.” 29 C.F.R. §825.302(c).
Moreover, no “magic words” are required for an employee to provide adequate notice to her employer that a leave or request for leave is (or may be) for a FMLA-qualifying reason and to trigger the employer’s obligations under the FMLA. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007).

Question 16

FMLA employee notice requirements

Answer 16

Once an employee has provided enough information to reasonably apprise the employer of the need to take FMLA leave, it is then “the employer’s responsibility to determine the applicability of the FMLA and to consider requested leave as FMLA leave.” McCarron v. British Telecom, 2002 WL 1832843 at *5 (E.D. Pa. 2002).

Among these obligations, “the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.” 29 C.F.R. §300(b).

Question 17

FMLA individualized written notice

Answer 17

Moreover, “[e]mployers shall provide written notice detailing the specific expectations and obligations [relating to the employee’s FMLA leave] of the employee and explaining any consequences of a failure to meet these obligations.” 29 C.F.R. §825.300(c).

Finally, an employer must provide individualized written designation notice relating to the leave. 29 C.F.R. §825.300(d).

Question 18

FMLA serious health condition

Answer 18

An employee is entitled to FMLA leave for a serious health condition which includes a condition that required “continuing treatment by a health care provider as defined in §825.115.” 29 CFR §825.113(a).

Question 19

FMLA chronic health condition

Answer 19

Chronic conditions pursuant to the FMLA have three (3) requirements:

“(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). 29 CFR §825.115(c).

Question 20

pre-FMLA eligibility protections

Answer 20

The FMLA protects pre-eligibility requests for post-eligibility FMLA leave. Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1272 (11th Cir. 2012). In Pereda, the plaintiff gave notice to her employer that she was pregnant and would need maternity leave to care for her newborn child. Id. At the time of plaintiff’s termination she had only been an employee for approximately eleven (11) months and was not yet FMLA eligible. Id. The plaintiff would have been eligible for FMLA leave once her projected leave was expected to begin. Id. Accordingly, the court held that because the employee would have been eligible for FMLA leave once it was set to begin, the employee was an FMLA eligible employee.

Question 21

FMLA retaliation - prima facie

Answer 21

In order to establish a claim for FMLA retaliation, the plaintiff must show that she
(1) availed herself of a protected right under the FMLA;
(2) she suffered an adverse employment action; and
(3) the adverse employment action was caused by her use of FMLA protected rights.
Lichtenstein, 691 F.3d at 302.

Question 22

PA defamation

Answer 22

“(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.”
Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007) citing 42 Pa. Const. Stat. Ann. §8343(a).

Question 23

PA interference with contractual relations

Answer 23

“(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party;
(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual legal damage as the result of the defendant’s conduct.”
Blackwell v. Eskin, 916 A.2d 1123, 1127-1128 (Pa. Super. 2007) citing Reading Radio, Inc. v. Fink, 833 A.2d 199, 211 (Pa. Super. 2003) quoting Strickland v. University of Scranton, 700 A.2d 979, 985 (Pa. Super. 1997).

Question 24

collateral estoppel

Answer 24

Collateral estoppel is the legal doctrine that “prevents the relitigation of a particular fact or legal issue that was litigated in an earlier action.” Robbins v. U.S. Foodservice, Inc. 2012 U.S. LEXIS 124665, *10 citing Sebrowski v. Pittsburgh Press Co., 188 F.3d 163, 169 (3d Cir. 1999).).

The party asserting collateral estoppel to prove five (5) elements for collateral estoppel:

(i)“the issue is identical to the issue decided in earlier proceeding;
(ii) the issue was actually litigated in an earlier proceeding;
(iii) the court issued a final judgment on the merits;
(iv) the determination was essential to the earlier judgment; and
(v) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.”
Id. at *10, *11.

Question 25

NJLAD discrimination

Answer 25

In order to prove a claim of disability discrimination under NJLAD, a plaintiff must prove that:
(1) she was disabled within the meaning of the NJLAD;
(2) she was performing her job at a level that met the employer’s legitimate expectations; and
(3) she suffered an adverse employment action because of her disability.
Bosshard v. Hackensack University Medical Center, 345 N.J.Super. 78, 783 A.2d 731, 739 (App. Div. 2001) (citing Seiden v. Marina Assoc., 315 N.J.Super. 451, 718 A.2d 1230, 1237 (1998)).