The descriptions below are facts and contentions contained in the reported record of the cases referred to.
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Burlington v. Ellerth, 524 U.S. 742, 118 Sup Ct 2257 (1998)
The Facts: Kimberly Ellerth was a salesperson in one for Burlington Industries, a large company with more than 22,000 people and some 50 plants around the United States. She worked in one of their divisions in Chicago. Her supervisor was Ted Slowik, a vice president in one of the business units. While on a business trip, Slowik invited Ellerth to a hotel lounge where he made remarks about her breasts. He told her to "loosen up" and warned, "You know, Kim I could make your life very hard or very easy at Burlington." Ellerth expressed no interest in these advances. A few months later when Ellerth was being considered for a promotion, Slowik expressed reservations because she was not "loose enough." The comment was followed by his reaching over and rubbing Ellerth’s knee. Ellerth received the promotion and when Slowik called to announce it, he told Ellerth, "You’re going to be out there with men who work in factories, and they certainly like women with pretty butts/legs." Two months later, Ellerth called Slowik, asking permission to insert a customer’s logo into a fabric sample and Slowik responded, "I don’t have time for you right now, Kim - unless you want to tell me what you’re wearing." Ellerth cut the call short but when she called a few days later to ask permission again Slowik added, "Are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier." Ellerth couldn’t take this conduct and quit the job. When she quit, she faxed a letter giving her reasons, which did not include sexual harassment. About three weeks after she quit she sent a letter explaining that she had quit because of Slowik’s behavior. During her tenure at Burlington Ellerth did not inform anyone in authority about Slowik’s conduct even though Burlington had a policy against sexual harassment. Should Burlington be liable for the actions of Slowik?
The Court held: The company would not be liable if it could show that it exercised reasonable care to stop sexual harassing behavior, and that Ellerth unreasonably failed to take advantage of corrective opportunities provided by the employer to avoid sexual harassment. The court noted that Burlington would have been liable regardless if Slowik had punished Ellerth for refusing to submit to his sexual harassment by depriving her of a "tangible job benefit". So if Slowik had denied Ellerth the promotion in retaliation for her refusal to submit to his sexual harassment, Burlington would have been liable regardless of any sexual harassment policy that the company had in effect and regardless of whether Ellerth had unreasonably refused or failed to take advantage of the sexual harassment policy procedures.
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Reeves v. Johnson Controls World Services, Inc., 14 F. 3d 144 (2nd Cir. 1998)
The Facts: Reeves was employed by Johnson Controls as an airport operations supervisor. Four years before he was fired, during a vacation trip to Florida, Reeves experienced severe anxiety symptoms for the first time at Disney World, "Upon seeing the enormity of the park and of the crowd, he began to sweat, his heart began to pound, he vomited, became more anxious than he had ever felt in his life," and passed out. When he returned to New York, he found he was incapable of making any trip if it involved "even the remote possibility of being caught in a traffic tie-up." He also entered a program at the Department of Psychiatry Phobia Clinic of the White Plains Hospital Medical Center. When he was later promoted, Johnson Controls sent Reeves to attend a training school in Virginia but because of his symptoms he was unable to fly and drove in a car accompanied by his aunt. He later experienced a panic attack at his job and was diagnosed by a psychiatrist as suffering from "panic disorder with agoraphobia." Reeves took a leave of absence from work to continue psychiatric treatment and was prescribed Prozac for depression and Imipramine for panic disorder. After he returned to work the medication alleviated his symptoms and he was fully able to perform his job duties. A couple of months later Reeves was fired because he had supposedly pressured two Johnson Controls employees to buy union raffle tickets and then lied to his supervisors by denying that he had done so. The two employees testified that Reeves had not really pressured them. Was he disabled?
The Court held: No, because Reeves was not substantially limited in his ability to walk or work even though Reeves was unable to travel over bridges or through tunnels, to avoid trains unaccompanied or to drive along routes prone to traffic tie-ups and over high roads.
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Rooney v. Tyson, 91 N.Y.2d 685, 674 N.Y.S.2d 616 (1998)
The Facts: Kevin Rooney claimed that Mike Tyson promised to give him ten per cent of his earnings in return for his personal training services. In 1980, when Tyson was 14 years old, he was placed under the supervision of Cus D’Amato, the renowned boxing figure and manager. When Tyson’s mother died, D’Amato became his legal guardian and agreed with Rooney that Rooney would train Tyson without pay until Tyson became a professional athlete at which point Rooney would be Tyson’s trainer "for as long as Tyson fought professionally." Rooney trained Tyson for 28 months without compensation whereupon Tyson turned professional and began his meteoric rise and success. D’Amato died the same year that Tyson turned professional. When rumors started in some sports media that Tyson was going to get rid of Rooney, Tyson supposedly authorized his new manager, Jane Jacobs, to state publicly that "Kevin Rooney will be Mike Tyson’s trainer as long as Mike Tyson’s a professional fighter." This was issued as a press release, a copy of which was sent to Rooney. Two years later, apparently in connection with Rooney’s alleged comments regarding Tyson’s divorce and other court cases he was involved in, Tyson fired Rooney. Is there a contract?
The Court held: Yes, because the agreement was for a definite duration. The jury awarded Rooney $4,415,651.
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The State of New York v. Wal-mart Stores, 207 A.D.2d 150, 621 N.Y.S.2d 158 (3rd Dept. 1995)
The Facts: Wal-mart fired two employees because they violated a policy in the employee manual which prohibited "a dating relationship" between a married employee and another employee, other than his or her own spouse. The plaintiff sought reinstatement of the two employees on the ground that their discharge violated Labor Law §201-d(2)(Chris) which forbids employer discrimination against employees because of their participation in "legal recreational activities" pursued outside of work hours. Was the dating a recreational activity?
The Court held: No, dating was not a recreational activity subject to the protection of the statute. The court noted, however, that the couple would have been protected if they had merely gone bowling together without an amorous interest, since that would have been merely a "dispassionate recreational activity."
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Hazen Paper Company v. Biggins, 507 U.S. 604 113 S. Ct. 1701
The Facts: Walter Biggins was fired when he was 62 years old a few weeks before his pension would have vested at the completion of ten years of service. The jury found that the company had deliberately discriminated against him based on his age and awarded him full damages. The appeals court affirmed the decision of the jury because it was not unreasonable to find that the company had decided to fire Mr. Biggins before his pension rights vested and age was involved in the decision because were it not for Mr. Biggins’ age, his pension rights would not have been about to vest.
The Court held: The Supreme Court of the United States reversed, because the company might have fired Mr. Biggins because of his years of service and not because of his age and a younger worker could also have had ten years of service.
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The State Division of Human Rights v. Kilian, 35 N.Y.2d 201, 360 N.Y.S.2d 603 (1974)
The Facts: For a period of 50 years Kilian has never employed a black or Latino. The work force, which experienced a rather rapid turnover, was replenished 85% by referrals from its employees and 15% by walk-ins from the street. Statistics indicated that there was a 10.7% black population in the area where the majority of Kilian’s employees lived. Kilian had never advertised for employees nor had it ever used any employment agencies. Did these statistics show discrimination?
The Court held: Yes, the methods of employee recruitment had the effect of perpetuating an all white work force and it was found to be discriminatory under the New York State Human Rights Law.
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McEniry v. Landi, 84 N.Y.2d 554, 620 N.Y.S.2d 328 (1994)
The Facts: William McEniry was a laborer employed by the Westchester County Department of Environmental Facilities. He had an alcohol dependency problem. In July 1990, McEniry was admitted to a 28-day inpatient detoxification program followed by a two week out-patient alcohol abuse program approved by the county’s employee assistance program. While he was participating in the rehabilitation program, the county charged McEniry with 47 counts of misconduct stemming from absenteeism, lateness and failure to provide documentation for absences between March 1989 and June 1990. When McEniry returned to work from the treatment program, his work was rated as satisfactory. At a hearing in December 1990, the hearing officer at McEniry’s Civil Service disciplinary hearing found that McEniry was guilty of all 47 specifications of misconduct and recommended that he be suspended for 60 days, suggesting that any further infraction by McEniry, however slight, should result in his dismissal. The hearing officer stated that, "There are many documented instances whereby an alcoholic can and may stay ‘dry’ for 3, 4, 5 months or so before going ‘off on a toot’ ‘so to speak.’ How many attempts have to be made by an employer to allow that person to seemingly rehabilitate himself?" The Commissioner of the agency adopted the hearing officer’s findings of fact but decided that suspension was not enough and that McEniry should be fired. Should he have been fired.
The Court held: No, McEniry was fired solely because of his alcohol-related chronic absenteeism. Since McEniry was recovering and performing his job satisfactorily at the time he was terminated, which was nearly three months after McEniry had completed the rehabilitation program, and because the agency’s supervisor, who evaluated McEniry for that period indicated that "Encouragement may be the answer . . . . There are some areas that may need a little more attention but I think that giving him a chance and a clean slate is all the incentive he needs," the court found that the agency had discriminated against McEniry based on the disability of alcoholism.
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Matter of Rourke v. New York State Department of Correctional Services, 201 A.D.2d 179, 615 N.Y.S.2d 470 (3rd Dept. 1994)
The Facts: Rourke was a full-blooded Native American and a member of the Mohawk Nation. While employed as a correction officer he became a practitioner of the Longhouse faith, the traditional religion of the Mohawks and in accordance with the tenets of that faith, ceased cutting his hair. Howard Maneely, the Deputy Superintendent of Security at the Riverview Correctional Facility where Rourke worked, ordered Rourke to cut his hair to the length prescribed by the prison’s rules which required that male officers are not permitted to wear their hair longer than one-half inch below the top of the shirt collar in the back. Women were allowed to wear their hair longer but had to pin it up while on duty to meet the same requirement. Rourke protested that his religious convictions prevented him from complying with the order and a compromise was worked out allowing Rourke to wear his hair in a ponytail, which he did without incident for over a year. The new director of the facility, William Costello again ordered Rourke to cut his hair. When Rourke refused to do so, Costello brought him up on disciplinary charges. At the hearing, the arbitrator found that wearing long hair was not a "requirement" of the Longhouse faith and that the department had offered, as compromise solution to permit Rourke to return to work if he wore a wig. The arbitrator ordered a 21-day suspension. When Rourke returned to work he was again presented with an order to cut his hair and given a second notice of dismissal. At the second arbitration, Rourke was dismissed because the arbitrator found that Rourke had deliberately disobeyed an order. Should Rourke be fired?
The Court held: Rourke had to be reinstated because he had been deprived of the right to freely practice his religion.
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Did the employment manual make a promise?
Mulder v. Donaldson, Lufkin & Jenrette, 208 A.D.2d 301, 623 N.Y.2d 560 (1st Dept. 1995)
The Facts: Mulder was an auditor and a member of the Securities Industry Association for over twenty years and an employee of the defendant brokerage house. In auditing the Miami offices of the brokerage house, Mulder reported violations of brokerage policies and of the rules of the Securities and Exchange Commission. He showed that a corporate account was controlled by three lawyers, one of whom was linked to a "money laundering" scheme in an indictment of the drug lord, Pablo Escobar. The account contained ten million dollars. Mulder discover that blanks checks in amounts exceeding $400,000 were being issued in connection with the account and that some of them were deposited in accounts seized by the Federal government as containing drug-related proceeds. Shortly afterwards, the brokerage house fired Mulder. Was Mulder an employee at will or could he be fired?
The Court held: Mulder was saved by the brokerage house employment manual. It stated that the reporting of financial irregularities was "encouraged in the spirit of good corporate governance. Anyone doing so will be protected against reprisals." But for this statement in the employment manual, the brokerage house would have been free to fired Mulder because he was an employee at will.
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Is it fair criticism or libelous?
Purgess v. Hospital for Special Surgery, 33 F.3d 134 (2nd Dept. 1994)
The Facts: Dr. Jan R. Purgess, an anesthesiologist, was fired from his position at the Hospital for Special Surgery. Two months after he was hired by the hospital, Purgess was interrupted while administering anesthesia for a spinal surgery operation by a summons to the office of Dr. Nigel E. Sharrock, the Director of the Department of Anesthesiology. He was given the alternative of submitting his resignation or being fired immediately. He refused to resign, was fired on the spot. After he was fired, Dr. Sharrock and other hospital officials notified the New York State Office of Professional Medical Conduct that Dr. Purgess had been fired for misconduct relating to patients and supplied five patient medical charts, one of which involved anesthesiologist other than Dr. Purgess. The hospital knew that that particular chart did not relate to Dr. Purgess. The hospital also informed the New York University Hospital, to which Purgess applied for privileges, that Dr. Purgess had been fired for "alleged malpractice and misconduct". The hospital backed up these charges by two related incidents, one of which admittedly involved another doctor. Dr. Purgess did not receive an offer of employment from N.Y.U. Was the jury right to award damages for defamation?
The Court held: Yes, since the jury could have found that Sharrock and the hospital had deliberately exaggerated the severity of the reported incidents to justify their actions and that there was a fair inference from these facts that there was an ulterior improper motive and that the defendants had acted with malicious intent.
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Cases
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