Ohio Nurse Brings Wrongful Termination Lawsuit

By Peter Levine posted in Discrimination, Employment Law, Law on November 20th, 2013

Operating Room Nurse Claims Wrongful Termination After a Healthy Kidney Was Discarded

Operating room nurse, Melanie Lemay, fired from the University of Toledo Medical Center (UTMC) almost a year ago after a kidney intended for transplant was accidentally discarded, has filed a lawsuit against the hospital for wrongful discharge, defamation, slander, and libel. The lawsuit seeks damages exceeding $25,000.

Allegedly the kidney, was accidentally disposed of by another nurse, Judith K. Moore. Ms. Moore, a part-time employee resigned. Mrs. Lemay, a 30-year employee of UTMC was fired.

Nurse Claims Healthy Kidney Was Accidentally Discarded Due to Computer System

According to lawsuit, on the day of surgery, Moore failed to log out of the hospital computer system before taking a scheduled break. The oversight required Lemay to make entries in the system under Moore’s chart while Moore was on her break.

Upon returning from her lunch break, Moore failed to obtain a status update before proceeding to remove the kidney from the OR and disposing of it.

Lemay upholds she did not witness the removal of the items and was unaware they had been removed after the other nurse had returned from her break.

Tragically, the kidney was a viable organ. Lemay claims she was fired for failure to stop the other nurse from removing items from the operating room before the procedure had concluded, as well as violating policies on communications and logging out procedures but that UTMC implemented new policies and procedures for responsibility of transfers in operating rooms six days after the incident occurred.

Nurse Claims Wrongful Termination Due to Policies Implemented After the Kidnay was Discarded

Lemay also alleges that the dossier of hospital OR policies and procedures that hospital administrators submitted to investigators with the Department of Health was identified as having an effective date of August 16, six days after the failed procedure in question.

The complaint claims Lemay’s firing was motivated by UTMC’s “need to deflect its responsibility for the inadequate policies that were in place on Aug. 10, 2012, and to uphold the public image of its kidney transplant program.”

State officials denied the initial claims for unemployment benefits. But after two telephone hearings with witnesses the Unemployment Compensation Review Commission ruled that Mrs. Lemay “was discharged by the defendant without just cause in connection with work.”

Vesper C. Williams II said, “It’d be nice. Something. Because she was only six months from the ability to retire. By getting fired, she lost the ability to get the next six months in and lost her health insurance after 30 days, and she was the primary breadwinner.”

Peter K. Levine
A Professional Law Corporation

Maxim Healthcare Has Second Unpaid Overtime Class Action Lawsuit

By Peter Levine posted in Discrimination, Employment Law, Law, Unpaid Overtime on November 19th, 2013

Maxim Healthcare Services, Inc., Has Two Unpaid Overtime Class Action Lawsuits

Maxim Healthcare Services, Inc, a corporation that provides in-home personal care, management and/or treatment of a variety of conditions by nurses, therapists, medical social workers, and home health aides is facing two separate class action lawsuits.

Both lawsuits allege Maxim failed to pay salaried employees for overtime compensation when those employees worked more than 40 hours a week.

One of the lawsuits, filed by a salaried healthcare recruiter working from an office location claims Maxim illegally did not pay him and “similarly situated” individuals overtime compensation for work that was not exempt from that requirement and that this action was in direct violation of the Fair Labor Standards Act (FLSA).

This lawsuit seeks to certify a class of similarly situated Maxim employees including all current and former salaried recruiters, including healthcare recruiters, homecare recruiters, staffing recruiters and senior recruiters, who were employed by Maxim Healthcare Services Inc. at any time during the past three years.

Second Unpaid Overtime Class Action Lawsuit Against Maxim Healthcare

The second lawsuit is an employment class action lawsuit filed by Jasmine Lawrence, who was formerly employed as a Home Health Aide for Maxim.

Lawrence alleges that Maxim Healthcare Services Inc, violated, and continues to violate, the Minimum Fair Wage Standards Act, because of its failure to compensate her and the class members at a rate not less than one and one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek.

Lawrence claims she regularly worked over 70 hours per week while employed by Maxim and that the majority of her time was spent performing general housekeeping duties as opposed to patient care, the job she was hired to do.

Lawrence also alleges that she and the members of the putative class who are employed by the Defendant in Ohio are “employees.”

Though overtime laws vary among states, they typically require employers to pay overtime-eligible employees an amount above their standard hourly rate for every hour worked above the established threshold in each state. The act of circumventing this requirement is a common cost-cutting method for some businesses as is requiring that employees continue working after clocking out for the day.

Peter K. Levine
A Professional Law Corporation

Home Depot Retail Chain Faces California Labor Discrimination Lawsuit

By Peter Levine posted in Discrimination, Employment Law, Law on November 18th, 2013

The Home Depot Improvement Chain Faces Discrimination Against Gay Employees

The home improvement retail chain, Home Depot is reportedly facing a California labor lawsuit that alleges the company discriminated against and harassed gay employees in attempts to lower the cost of benefits the company was financial responsible for under the California Domestic Relationship Act.

Plaintiff Hardy Housh was 57 and had worked at Home Depot for 25 years when they fired him in 2012. A former manager at a San Diego location who identifies himself as being gay, Housh filed the lawsuit alleging the company pushed out older gay employees out of fear for having to pay for medical benefits associated with AIDS and HIV.

Housh is seeking $100,000 in damages for discrimination, sexual harassment, and other counts. When the chain had financial difficulties and wanted to cut costs during the economic fallout precipitated by the collapse of the housing market, it allegedly sought out certain employees to fire on the basis of age and sexual orientation.His complaint states that “Home Depot was concerned with ‘gay male’ employees because of its perception that it would pay more medical benefits associated with HIV and AIDS viruses.” Also that “Home Depot was concerned that it would have to pay costs associated with ‘gay partners.’”

Home Depot Allegedly Faked Write-Ups on Targeted Employees

According to the lawsuit, Home Depot allegedly wrote up fake write-ups on employees who were targeted.  Housh claims to have received fraudulent personnel write-ups from supervisors and that “During February of 2012, Housh was subjected to an additional false write-up and was terminated without an opportunity to prove that it was based on false facts – that he trash-compacted a microwave oven in violation of hazmat rules.”

Furthermore, managers reportedly harassed Housh with inappropriate sexual gestures that included sexually explicit pictures sent to his e-mail.

The harassment reportedly began in October 2011, almost immediately after Housh added his registered domestic partner in his Home Depot  insurance plan.

Peter K. Levine
A Professional Law Corporation

Trucking Company Sued by EEOC for Disability Discrimination

By Peter Levine posted in Discrimination, Employment Law, Law on November 15th, 2013

CTI, Inc., a Tucson Area Trucking Company, Sued by the EEOC For Disability Discrimination

CTI, Inc., a Tucson-area regional trucking company has been charged by the U.S. Equal Employment Opportunity Commission with violating federal law due to its practice of automatically firing employees after medical leave without considering or offering possible reasonable accommodations.

According to the suit, Elizabeth Barr, a CTI payroll and billing clerk, who suffered from a rare eye disease that substantially limited her eyesight, needed multiple surgeries to correct her eyesight. She requested and used leave accorded to her under the Family Medical Leave Act (FMLA). This entitles eligible employees of covered employers to up to 12 weeks of unpaid leave during any 12-month period. Before her leave was to expire CTI informed Barr that if her doctor did not release her to “full, unrestricted duty,” her employment and benefits might be terminated. Barr requested additional time for recovery, but CTI denied her and refused to explore possible accommodations for Barr.

EEOC Alleges Disability Discrimination Cause for CTI’s Termination of Employee

The EEOC alleges that CTI terminated Barr’s employment because of her disability and/or because she asked for a possible accommodation and also that other employees were discharged because of their disabilities and/or because they needed reasonable accommodations.

Such alleged actions violate Title I of the Americans with Disabilities Act (ADA). This Act prohibits employers from discriminating against qualified individuals with disabilities. Initial attempts were made through the EEOC’s conciliation process to reach a pre-litigation settlement, but failed. The lawsuit seeks monetary damages that include back pay, compensation for emotional distress, as well as punitive damages in addition to injunctive relief, that includes the reinstatement of the affected individuals and other relief to prevent further discriminatory practices.

“Recent amendments to the ADA make clear that the protections for persons with disabilities should be broadly applied,” said EEOC Phoenix Regional Attorney Mary Jo O’Neill. “Individuals with disabilities are an untapped resource that employers should utilize. Many are qualified, ready and willing to work — all they need is an equal opportunity.”

EEOC District Director Rayford O. Irvin added, “Once an employee asks for a reasonable accommodation, the employer is required to engage in an interactive process to see if there are ways that the employee can be accommodated, rather than simply firing the employee. We will continue to vigorously pursue our mission of fighting employment discrimination on all fronts. Employers have a legal obligation to provide reasonable accommodations unless there is an undue hardship.”

Peter K. Levine
A Professional Law Corporation

Human Relations Commission charged with Race Discrimination

By Peter Levine posted in Discrimination, Employment Law, Law on November 14th, 2013

The PA Agengy That Handled Employment Discrimination is Charged With Employment Discrimination!

The Pennsylvania agency that handles discrimination in employment, housing, education, public accommodations and property issuesis finding itself the target of a federal discrimination lawsuit. Attorney Kathryn L. Waters is claiming she was denied the agency’s top executive post because she is black.

Waters is seeking $581,941 in damages after the U.S Equal Employment Opportunity Commission issued a letter finding there is “reasonable cause” for Waters to pursue her discrimination claim against the Human Relations Commission.

Waters alleges she should have been chosen for the position of executive director in mid-2011. Instead, the commission chose a white woman, JoAnn L. Edwards of Lebanon, a veteran human relations executive in the nonprofit sector.

In her lawsuit Waters claims she was better qualified for the job and that the Human Relations Commission’s decision not to hire her was in violation of her civil rights.

Waters filed the lawsuit after the commission refused to negotiate with her about the discrimination claims. She is representing herself in the lawsuit and has asked the judge presiding over the case, Judge Yvette Kane to allow her to proceed under pauper status. Waters’ only income is from working at a Harrisburg day care center.

The EEOC did, however deny her allegation that she had been discriminated against when she was not hired for a special assistant job at the Human Relations Commission in November 2011, noting the hiring for that job was based on rankings devised by a colorblind computer program.

However, the executive director position hiring was based on recommendations of a search committee that considered 60 candidates. Waters claims the hiring committee improperly lowered her ranking among those candidates from the No. 2 spot to the No. 4 spot. At that point the agency officials decided to consider only the top three applicants for the second round of employment interviews.

Water alleges Edwards was originally ranked fourth on the candidate list. The EEOC found that, while the commission claimed Edwards scored highest in an evaluation of the three finalists, another black woman actually ranked higher by the search committee, but was not hired. The EEOC also concluded that Waters’ qualifications for the executive director job actually did exceed Edwards’ qualifications.

EEOC Concluded Race Discrimination Not a Factor in Commission’s Hiring

The EEOC concluded the Human Relation Commission’s claim that race was not a factor in Edwards’ hiring “does not withstand scrutiny” and that there are grounds to believe that discrimination might have occurred. The EEOC also denied a Human Relation Commission request that the EEOC reconsider its finding in the Waters case and urged the matter be resolved through a conciliation process.

The matter was referred to the U.S Department of Justice, which sent Waters a letter stating that it would not file a lawsuit over the dispute but she had a right to file her own lawsuit under the federal Civil Rights Act. The letter also stated “This should not be taken to mean that the Department of Justice has made a judgment as to whether or not your charge is meritorious.”

Peter K. Levine
A Professional Law Corporation

Pregnancy Discrimination Case Settled Against Lucasfilm

By Peter Levine posted in Discrimination, Employment Law, Law on November 13th, 2013

Pregnancy Discrimination Case Against Lucasfilm Has Pre-Trial Settlement

A high-profile, bitterly fought pregnancy discrimination lawsuit filed more than four years ago by Julie Veronese against Lucasfilm Ltd. was recently dismissed following a settlement between the parties.

In April 2008 Veronese, then 36, applied to become an assistant manager to Sarita Patel, the estate manager at the San Anselmo estate of  “Star Wars” filmmaker George Lucas.

Veronese was hired but never started work, claiming she was terminated because she became pregnant. She had signed a contract for a 30-day position to start two months later, but alleges she was told it was a probationary period for a permanent $75,000-a-year job.

Three days before she was to start work, Veronese told Patel that she was pregnant. Allegedly Patel put the job on hold and repeatedly delayed Veronese’s starting date. The day after Veronese sent an e-mail to Patel claiming she was being mistreated because of her pregnancy Lucasfilm withdrew the job.

Lucasfilm Originally Denied the Discrimination Charge

Lucasfilm denied the discrimination charge, saying it revoked its offer for reasons unrelated to her pregnancy. Defense witnesses said Patel, who had supervised other pregnant employees, had decided to revoke the offer after she had received the accusatory e-mail. They alleged that Patel felt the email showed Veronese to be self-centered, disrespectful and dishonest.

Veronese was represented by Angela Alioto, an employment rights lawyer, a former San Francisco supervisor, and her mother-in-law.

After 2 1/2 days of deliberations the Superior Court sided with Veronese. Jurors also agreed Veronese had been assured of an ongoing position after a 30-day tryout.

Jurors were shown an e-mail that Lucas’ executive assistant sent to Patel on the day the company learned Veronese was pregnant that expressed concern about whether she would be able to do the job while pregnant.

Lucasfilm Attorneys Allege Veronese Lied Under Oath

Attorneys also allege Veronese lied under oath about the date she learned of her pregnancy – nearly a month before she had disclosed it to Patel. Alioto’s counterargument was that Veronese had no legal obligation to tell the company of the pregnancy.

Lucas testified June 17 that he had not been involved in the decision to hire or withdraw Veronese’s job offer.

The jury awarded $113,800 in damages – $93,800 for lost wages and $20,000 for emotional distress, and rejected a request for punitive damages.

“Women who are pregnant are so discriminated against, and nobody talks about it,” Alioto said.

Lucasfilm said it would appeal.

“I thought I had found a place where I fit in,” Veronese said, now 37. “The minute I told them I was pregnant, I just watched it crumble.”

Peter K. Levine
A Professional Law Corporation

Male Reporter for CNN Claims Discrimination in Family Leave Case

By Peter Levine posted in Discrimination, Employment Law on November 12th, 2013

Josh Levs of CNN Claims Time Warner Discrimination In Paid Family Leave for New Biological Fathers

CNN reporter Josh Levs announced that he and his lawyers, along with the Equal Employment Opportunity Commission (EEOC) have filed a charge against parent company Time Warner, claiming that the company’s paid family leave policy discriminates against new biological fathers.

Writing about the claim on his Tumblr, Levs says that the company’s rules allow all parents of new children to take 10 paid weeks off except for biological fathers, who are only granted two weeks. According to the company’s policies women who give birth as well as new parents with new children through adoption or surrogacy get 10 paid weeks off. But new biological fathers aren’t covered.

Levs alleges that for two months he tried to get the company to undo that loophole. He was rejected 11 days after his child was born while he was already on leave to care for her.

“Under Time Warner rules, I have only two choices: stay out for 10 weeks without pay, or return to work and hire someone to come to our home each day,” he writes. “Neither is financially tenable, and the fact that only biological dads face this choice at this point in a newborn’s life is ludicrous.”

Discrimination of Time Warner’s Family Leave Policy Against New Fathers

Now that his two weeks of paid leave have run out, he’s using days from the company’s paid time off policy. He will have to go back to work next week if nothing changes.

“I can’t sit by and allow this inequality,” he says. “It’s unfair to my wife and family, and to other dads and their families.”

Despite the discrimination Levs says he is facing, he is actually lucky compared to other new fathers in the U.S. Only 11 percent of private sector workers and 17 percent of public sector workers have access to paid maternity leave through their employers.  Paternity leave is more rare. New parents of either gender aren’t guaranteed any paid leave under federal law, and only 12 weeks of unpaid leave if they work at a company with 50 or more employees. 5 percent of covered workers report needing to take leave but not being able to do so because they can’t afford it. Given restrictions within the law, 40 percent of workers aren’t even covered by those protections.

To ensure all workers have access to paid leave for a new child, the Center for American Progress has proposed Social Security Cares. This is a nationwide program that would allow workers to pay into family leave through Social Security payroll deductions.

Peter K. Levine
A Professional Law Corporation

Pregnant Workers Endure Routine Discrimination in the Workplace

By Peter Levine posted in Discrimination, Employment Law, Law on November 11th, 2013

Pregnant Workers Are Sometimes Forced to Choose Between a Job and Their Health

In 2007 Heather Myers was seven months pregnant when she was working as a Walmart floor associate, stocking shelves and cleaning aisles for minimum wage.

When she was told she could no longer carry anything to drink in the cart she pushed around all day, she brought two separate letters from her doctor, saying that she was at risk for urinary tract infections and needed to keep hydrated. Her request was twice denied, she said. “I decided to listen to my doctor rather than my manager,” Myers recalled. She was then told, “either the water bottle has to go or you have to go.”

Myers decided to leave, making her one of the many workers who are fired or forced to take unpaid leave after asking for basic accommodations during their pregnancy.

The legality of this situation is an unexpectedly complicated question raised in a recent report by the National Women’s Law Center (NWLC) and A Better Balance (ABB). Both are advocates for strengthening the protections they allege are ignored by the existing law.

Discrimination of Pregnant Workers Under Americans with Disabilities Act

“We think the law is clear,” said Emily Martin, NWLC’s vice-president and general counsel. “But since there are unfortunately still a lot of employers out there who believe, or at least assert, that you don’t have to accommodate limitations arising out of pregnancy even if you accommodate the same limitation when it rises out of injury, then we need to make it clearer.”

The “misunderstanding,” she said, is based in the fact that pregnancy is not itself a disability under the Americans with Disabilities Act. “That’s as it should be,” she said. “Pregnancy is NOT a disability – it’s healthy and normal.” According to Martin, for the first 35 years under the ADA, pregnant workers were therefore not explicitly protected. In 2008 that act was expanded to include temporary disabilities.

“You have always had to treat pregnancy the way you treat temporary disability,” Martin argues, “and since the way you treat temporary disability has changed, the way you treat pregnancy has to change.”

The haphazardness with which pregnancy accommodations are and are not granted by employers means the law needs to be clarified. Legislation is currently being considered before committees in both the House and Senate. If passed, it would amend federal employment law to explicitly state that “limitations arising out of pregnancy should be accommodated unless it causes undue hardship” to an employer.

Peter K. Levine
A Professional Law Corporation

Farmers Insurance Sued by EEOC for Race Bias Discrimination

By Peter Levine posted in Discrimination, Employment Law, Law on November 8th, 2013

The EEOC Has Sued Farmers Insurance in the Firing of  Asian-American Claims Representatives

The U.S. Equal Employment Opportunity Commission (EEOC) has charged in a lawsuit that Farmers Insurance Exchange violated federal law when it fired two Southeast Asian-American employees because of their race, and then unlawfully fired a third non-Asian employee in retaliation for his participation in the EEOC’s investigation.

Two of the employees are of Hmong descent and were the only Asian-American employees working at the insurance company’s Fresno office during the time of their termination during March 2009.  Allegedly, a supervisor had instructed staff to code insurance payments in a manner as to avoid the automated prompting of customer surveys.

A 2009 audit revealed that several of the claims representatives in the office had instances of improper coding.  However, the EEOC’s lawsuit contends that only the Asian-American claims representatives were targeted for termination. In fact, a Caucasian claims adjuster had a similar number of cases coded, but was not terminated in March 2009. However, he was placed on leave a week after he was interviewed by the EEOC and provided testimony during investigation into the discrimination charges.

Race Discrimination violates Title VII of the Civil Rights Act

Race discrimination and retaliation for complaining about it violate the Title VII of the Civil Rights Act. The EEOC’s suit seeks back pay, compensatory, and punitive damages for the alleged victims.

“Generally, Asian-Americans and Pacific Islanders seldom come forward to report discrimination,” said Anna Park, regional attorney for the EEOC.  “The EEOC is here to help victims of illegal discrimination and to ensure that employers treat workers equally. Our hope is that more will find the courage to come forward to break the cycle of discrimination at work.”

Melissa Barrios, local director at the EEOC’s Fresno Office, added that “Federal law protects employees who participate in investigations or proceedings involving employment discrimination from retaliation.  Workers have the right to provide testimony or protest discrimination without negative employment consequences.”

Peter K. Levine
A Professional Law Corporation

Toys”R”Us to Settle EEOC Disability Discrimination Lawsuit

By Peter Levine posted in Discrimination, Employment Law on November 7th, 2013

Toys”R”Us Will Pay $35,000 to Settle EEOC Disability Discrimination Lawsuit

Toys”R”Us, Inc., one of the world’s largest retailers of toys and juvenile products, will pay $35,000 as well as provide significant equitable relief to settle a disability discrimination lawsuit according to the U.S Equal Employment Opportunity Commission (EEOC).

Allegedly, according to the EEOC’s suit, after Shakirra Thomas applied for a team member position at the retailer, Toys”R”Us contacted her and requested she attend a group interview. Thomas’s mother told Toys”R”Us that Thomas was deaf and communicates through American Sign Language, reading lips and through written word, and thus required an interpreter for the interview. The retailer responded that Thomas would have to provide her own interpreter.

Thomas’s mother interpreted for her during the interview. According to the lawsuit the retailer refused to hire Thomas, despite her qualifications and ability to perform the team member position, with or without a reasonable accommodation.

Disability Discrimination by Employers Violates Americans with Disabilities Act

Disability discrimination in employment violates the Americans with Disabilities Act (ADA). This Act ensures that employers provide reasonable accommodations where necessary to individuals with disabilities, including its applicants.

“This settlement should remind all employers that, absent an undue hardship, the ADA requires providing a reasonable accommodation to job applicants and employees who request one,” said EEOC District Director Spencer H. Lewis, Jr.  “Hiring decisions should be made based on an individual’s qualifications and not because of a disability.”

In addition to $35,000 in monetary relief awarded to Thomas, the three-year stipulated judgment admonishes Toys”R”Us from future discrimination on the basis of disability.  Toys”R”Us will provide training to managers and supervisors regarding the ADA, which includes non-discriminatory interviewing and hiring practices. The retailer must also post a notice regarding the resolution of the lawsuit.

EEOC Regional Attorney Debra M. Lawrence added, “We are pleased that Toys”R”Us worked with us to resolve this lawsuit.  This settlement, including the extensive training provisions, should protect applicants and employees from disability discrimination.”

Peter K. Levine
A Professional Law Corporation

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