Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, April 10, 2013

Health Care Employees—Nondiscriminatory Reasons—Narcotics Overprescription



Ball v. Einstein Cmty. Health Assocs.  ____F.3d___(3d. Cir. 2/14/13), is an interesting case.
The Third Circuit holds that billing errors, overprescription of narcotics, and the failure to refer drug-seeking patients to a pain management specialist were legitimate, nondiscriminatory reasons for a medical practice not to renew a 73-year-old primary care physician's contract, which he failed to show were pretextual, where the physician prescribed narcotics at about twice the rate of other physicians in his office; additionally, there is no evidence that he was treated differently than similarly situated younger physicians.

Mitchell H. Rubinstein

April 10, 2013 in Employment Discrimination | Permalink | Comments (0)

Monday, April 8, 2013


(Diaz v. Saucon Valley Manor Inc., E.D. Pa., No. 5:12-cv-00433, 3/5/13), is an interesting decision. 
An alcoholic cook who was fired after being arrested for public drunkenness and ordered to enter a treatment program raised a disputed fact issue as to whether her termination was discriminatory by showing that she received an “excellent” performance review six weeks earlier and that her employer knew of her alcoholism and approved her request for related medical leave and did not fire another worker following an arrest. Thus, summary judgment for the employer on her claims under the Americans with Disabilities Act Amendments Act, Section 504 of the Rehabilitation Act, and state law was denied.

Mitchell H. Rubinstein

April 8, 2013 in Employment Discrimination | Permalink | Comments (0)

Monday, March 25, 2013

Interesting Same Sex Harassment Case Decided By 2d Circuit

A male food industry worker in New York presented sufficient evidence to prove he was sexually harassed by a male supervisor, the U.S. Court of Appeals for the Second Circuit held Feb. 25, reviving his sex discrimination claims under Title VII of the 1964 Civil Rights Act and state law  Barrows v. Seneca Foods Corp., ____F.3d____(2d Cir. 2/25/13 ).
A reasonable jury could conclude that plaintiff was subjected to same-sex sexual harassment by one of his supervisors at Seneca Foods Corp. The 2d Circuit held that  a lower court erred in deciding that the s alleged harassment, which purportedly included requesting a “blowjob” and touching the genitals of Barrows and other male employees, was not based on sex.

March 25, 2013 in Employment Discrimination | Permalink | Comments (0)

Tuesday, March 19, 2013

7th Circuit Affirms Large ADA Verdict and Punitive Damages


The 7th Circuit recently held that an employer is liable under the Americans with Disabilities Act for failure to accommodate a parts sales manager who asked to be excused from mopping store floors because it aggravated his back condition and properly was assessed $200,000 in punitive damages for “reckless indifference” to his rights. EEOC v. AutoZone Inc., ___F.3d____(7th Cir., No. 12-1017, 2/15/13).

Mitchell H. Rubinstein

March 19, 2013 in Employment Discrimination | Permalink | Comments (0)

Thursday, March 14, 2013

2d Circuit Issues Important Sexual Harassment Decision

Desardouin v. City of Rochester, ____F.3d____(2d Cir. Feb. 19, 2013), is an important decision where the Second Circuit clarified the standards for hostile environment sexual harassment. As the court stated:

    A hostile work environment claim requires a plaintiff to
show that a workplace is “so severely permeated with discriminatory
intimidation, ridicule, and insult that the terms and conditions of
her employment were thereby altered.” Alfano v. Costello, 294 F.3d
365, 373-74 (2d Cir. 2002) (citations omitted). The plaintiff must
also show “either that a single incident was extraordinarily severe,
or that a series of incidents were sufficiently continuous and
concerted to have altered the conditions of her working environment.”
Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal
quotation marks omitted). If a plaintiff relies on a series of
incidents, they must be “more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.” Perry v.
Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (internal
quotation marks omitted). In determining whether the threshold has
been met, relevant factors include “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work performance.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The
plaintiff must also subjectively perceive the environment to be
abusive. Id. at 22-23.

Mitchell H. Rubinstein



March 14, 2013 in Employment Discrimination | Permalink | Comments (0)

Saturday, March 2, 2013

Recent Case Demonstrates Stray Remark Doctrine In Context of Emails

A Blacke auto parts store manager who alleged he was fired because of his supervisor's racial animosity has triable race discrimination and retaliation claims because he showed sufficient evidence of possible pretext, but cannot maintain his charge of a hostile work environment with a single derogatory email, the U.S. District Court for the District of Colorado ruled Jan. 29 (Hallmon v. Advance Auto Parts, Inc., D. Colo., No. 12-cv-00124, 1/29/13).

Mitchell H. Rubinstein


March 2, 2013 in Employment Discrimination | Permalink | Comments (0)

Sunday, February 24, 2013

Airline Employee Fired After 40 Years Does Not Make Out An ADEA Case

An Air India employee who left the company at age 65 after almost 40 years lacks triable age bias and constructive discharge claim. Vazifdar v. Air India,  ___F.Supp.2d___, No. 4:11-cv-03117,(S.D. Tx. 1/29/13).

February 24, 2013 in Employment Discrimination | Permalink | Comments (0)

Court Holds Nurse Not Qualified Because She Applied For Disability

An RN suffering from fibromyalgia who was fired for poor performance failed to show she was a “qualified individual” under the Americans with Disabilities Act Amendments Act because she sought disability benefits and applied for only one job following her termination according to the court which so ruled on Jan. 28, 2013. (Bell v. Methodist Healthcare Memphis Hosps., W.D. Tenn., No. 2:11-cv-02756, 1/28/13).

MItchell H. Rubinstein

February 24, 2013 in Employment Discrimination | Permalink | Comments (0)

Sunday, February 17, 2013

Court Boosts Claims by Fired Pharmacist Unable to Give Flu Shots Because of Arthritis

A grocery store chain that fired a pharmacist whose rheumatoid arthritis left her unable to give flu shots to customers failed to prove that the former employee could not perform her job's essential functions. (Scavetta v. King Soopers Inc., D. Colo., No. 1:10-cv-02986, 1/28/13).
Significantly, plaintiff's supervisors did not force her to give the shots until more than a year after they became aware of her medical restrictions and that King Soopers allowed at least 10 other pharmacists to avoid administering immunizations because of similar conditions.
Mitchell H. Rubinstein

February 17, 2013 in Employment Discrimination | Permalink | Comments (0)

Sunday, February 10, 2013

Texas Federal Court Applies Hybrid Employee Status Test In Disco Case

 A former legal support service worker fired one year after ending a romantic relationship with her boss showed sufficient evidence of employee status to proceed with her sex discrimination, sexual harassment, retaliation, and wage claims. (Fontenot v. Brouillette,S.D. Tex., No. 4:10-CV-01053, 1/15/13).

Partially denying summary judgment, the court holds that plaintiff  presented enough facts to raise a question of whether she was as an “employee” under Title VII of the 1964 Civil Rights Act and the Fair Labor Standards Act, instead of an independent contractor.

The court found that plaintiff provided sufficient proof that her former manager and six energy companies had the right to control her work performance, according to the “hybrid economic realities/common law control test” adopted by the Fifth Circuit. A copy of the case can be found here.

Mitchell H. Rubinstein

February 10, 2013 in Employment Discrimination | Permalink | Comments (0)

Wednesday, February 6, 2013

Pen Store Manager's Claims Denied as Arthritis Left Her Unable to Do Job


Those of you who know me, know that I am into pens. Well, we all have our vices! That is why this case caught my eye. The former manager of a high-end California pen store who was fired after requesting four months of medical leave because of psoriatic arthritis failed to show the decision was discriminatory because she was unable to perform the job's essential duties.( Lawler v. Montblanc N. Am. LLC, 9th Cir., No. 11-16206, 1/11/13).

Plaintiff  admitted that her duties as manager of Montblanc's Valley Fair Shopping Center store only could be performed on-site and that her arthritis-related symptoms prevented her from doing the job. As a result, Judge Duffy finds that her requested accommodations—a shorter workweek and four months of leave—would not allow her to perform the job's essential functions.

The decision can be found here.

Mitchell H. Rubinstein

February 6, 2013 in Employment Discrimination | Permalink | Comments (0)

Monday, February 4, 2013

Pregnant UPS Driver Denied Work Lacks Title VII, ADA Claims

Via the Daily Labor Report:

A UPS  driver prevented from working while pregnant because her doctor imposed a lifting restriction lacks a triable claim under the Americans with Disabilities Act or the pregnancy discrimination amendment to Title VII of the 1964 Civil Rights Act. Young v. UPS Inc., 4th Cir., No. 11-2078, 1/9/13.

The court held UPS's light-duty policy, which excludes pregnant employees the same as other workers temporarily unable to perform their jobs because of non-work related conditions, does not violate Title VII, as amended by the Pregnancy Discrimination Act. The court rejects a PDA interpretation that would require accommodations for pregnant employees like those the ADA requires for workers with disabilities. “We therefore adhere to the majority view that where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA,”

February 4, 2013 in Employment Discrimination | Permalink | Comments (1)

Sunday, February 3, 2013

Supremes Grant Cert. In Mixed Motive Case

Supreme Court
 The Supremes agreed to consider whether the prohibition on retaliatory employment actions in Title VII of the 1964 Civil Rights Act and similarly worded statutes requires a plaintiff to prove but-for causation for an adverse employment action, or whether the law only requires proof that an improper motive was one of several reasons for an employer's action (Univ. of Texas Sw. Med. Ctr. v. Nassar, U.S., No. 12-484, cert. granted 1/18/13).

This is an important case to watch as it involves a common issue. 

Mitchell H. Rubinstein

February 3, 2013 in Employment Discrimination | Permalink | Comments (1)

Wednesday, January 9, 2013

Being Fired Because Your Too Attractive Is Not Actionable

Nelson v. Knight, (Iowa Supreme Court Dec. 21, 2012), is one of those cases that you just have to read and which received a significant amount of media coverage. The Court, applying Iowa state law against employment discrimination held that it was not discrimination to fire an employee simply because the boss views the employee as an irresistible attraction.

The Court looked to sexual favoritism cases under Title VII which held that it was not unlawful to give preference to your girl friend because the preference had nothing to do with her gender. Rather, the preference was given because she was your girlfriend. As the Court expalined:

 Title VII and the Iowa Civil Rights Act are not general fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.

As unfair as this is, it does seem to be correct. Law review commentary would be most welcome.

Mitchell H. Rubinstein

January 9, 2013 in Employment Discrimination, Employment Law, Law Review Ideas | Permalink | Comments (0)

Thursday, December 27, 2012

Employer met its burden of showing employee failed to establish her age discrimination, hostile work environment, constructive discharge and retaliation claims

In this action, the plaintiff [P] alleged that she was the target of unlawful age discrimination, served in a hostile work environment, and was subjected to constrictive discharge and retaliation.
The Appellate Division sustained the Supreme Court’s dismissal of the P’s petition, finding that the employer had met its burden of demonstrating P failed to establish her claims of age discrimination, hostile work environment, constructive discharge, and retaliation.
The Appellate Division, with respect to P’s unlawful discrimination claim, explained that there was no evidence that P suffered from an adverse employment action. The assignment of P to certain non-supervisory tasks ordinarily performed by teachers constituted "merely an alteration of her responsibilities and did not result in a materially adverse change,' since [she] retained the terms and conditions of her employment, and her salary remained the same."*
The court said that P failed to raise a triable issue of fact as to her hostile work environment claim, since the alleged conduct and insults by her employer and coworkers were not "sufficiently severe or pervasive to alter the conditions of [her] employment"
Addressing P’s claim of constructive discharge, the court said that standard for establishing "constructive dismissal" is higher than the standard for establishing a hostile work environment, “where, as here, the alleged constructive discharge stems from the alleged hostile work environment.” As P failed to raise a triable issue of fact with respect to her hostile work environment claim, "her claim of constructive discharge also fails.” 
Finally, the Appellate Division held that with respect to P's retaliation claim in found no evidence of an adverse employment action resulting from her filing of a notice of claim against the employer nor was there any evidence of a causal connection between P's commencement of litigation and the allegedly adverse actions against her, commenting that the conduct at issue began months before P filed the notice of claim
* As to P’s complaint alleged disciplinary memoranda in her file, threats of unsatisfactory ratings, disciplinary meetings and allegations of corporal punishment, these did not constitute adverse employment actions as P received "satisfactory end-of-year performance rating[s], and none of the [alleged] reprimands resulted in any reduction in pay or privileges."
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

December 27, 2012 in Employment Discrimination | Permalink | Comments (0)

Tuesday, December 25, 2012

Jail Worker's Claims Not Barred by Promotion, Back-Pay Grievance Award

From the Dec. 4, 2012 Daily Labor Report:

A female corrections officer granted a promotion after she filed suit claiming she was passed over for the position because of her sex can proceed with claims against her employer, despite being awarded the job and back pay, the U.S. District Court for the Middle District of Pennsylvaniarules (Kosek v. Luzerne Cnty., M.D. Pa., No. 3:11-cv-01558, 11/30/12).

Sarah Kosek's promotion to a correctional counselor position at Luzerne County Correctional Facility after filing a union grievance and later a federal sex discrimination action did not moot her claims against the county and prison warden under Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1871, and the Pennsylvania Human Relations Act because she may be entitled to additional injunctive and equitable relief, according to the court.

Mitchell H. Rubinstein


December 25, 2012 in Employment Discrimination | Permalink | Comments (0)

Saturday, November 17, 2012

Sex Discrimination—Reasonable Accommodations—Breast-Feeding

Pitts-Baad v. Valvoline Instant Oil Change,  ___N.E.2D___(Ohio Ct. App.10/15/12), is an interesting Ohio state court appellate decision. The Ohio Court of Appeals rejects a female employee's sex bias claim based on her employer's alleged failure to accommodate her breast-feeding. The court concluded that allowing such a claim under the “sex-plus” theory of discrimination would impermissibly elevate breast milk pumping to the level of a protected status.

Law review commentary on this issue would be most welcome.

Mitchell H. Rubinstein

November 17, 2012 in Employment Discrimination, Law Review Ideas | Permalink | Comments (1)

Thursday, November 15, 2012

Court Upholds Discharge of A Nurse For Snooping

Cassidy v. Pocono Med. Ctr.,  M.D. Pa.,  No. 12-cv-1191,  10/19/12, is an interesting decision. 
Granting a motion to dismiss filed by a hospital that fired a nurse for allegedly snooping in a patient's chart, the U.S. District Court for the Middle District of Pennsylvania finds the nurse failed to state claims under the Age Discrimination in Employment Act or national origin discrimination violative of Title VII of the 1964 Civil Rights Act. Text at

Mitchell H. Rubinstein

November 15, 2012 in Employment Discrimination | Permalink | Comments (0)

Wednesday, November 14, 2012

Perceived Sexual Orientation Not Protected Under State Bias Law, Washington Court Says

A heterosexual delivery driver did not present an actionable claim under state law based on a co-worker repeatedly calling him “Big Gay Al,” because perceived sexual orientation is not a protected status under Washington's Law Against Discrimination, a state appeals court held Oct. 23 (Davis v. Fred's Appliance Inc., Wash. Ct. App., No. 30269-5-III, 10/23/12).

November 14, 2012 in Employment Discrimination | Permalink | Comments (0)

Monday, November 12, 2012

Case That Sits In EEOC Cannot Be Dismissed On That Basis

A federal district court in Illinois denies a restaurant company's motion for dismissal of a Title VII lawsuit t brought by an employee who allegedly allowed an administrative charge of illegal bias to “languish” for six years without action by the Equal Employment Opportunity Commission (Stokes v. Pappas Rests. Inc., N.D. Ill., No. 11-cv-9206, 10/17/12).

Mitchell H. Rubinstein

November 12, 2012 in Employment Discrimination | Permalink | Comments (0)