Employment Law Daily Depletion of medical leave not adverse action, could not support race bias claim
Monday, June 13, 2016

Depletion of medical leave not adverse action, could not support race bias claim

By Kathleen Kapusta, J.D. The depletion on an African-American employee’s accrued medical leave, which he claimed he was forced to use due to emotional distress resulting from his employer’s attempt to discharge and reprimand him, was not an adverse employment action, ruled the Eighth Circuit, finding that he failed to set forth a prima facie case of race discrimination. Nor did he show that two Caucasian employees, who allegedly received more favorable treatment, were similarly situated to him, said the court, affirming the lower court’s grant of summary judgment against his Title VII claims (Jones v. City of St. Louis, Missouri, June 9, 2016, Wollman, R.). The city electrician was required to periodically be on call and respond to after-hour emergencies. In 2009, he filed a discrimination charge alleging the city charged him with stealing time and threatened to terminate him based on his race. The "time-stealing" accusation arose out of an incident in which he submitted an after-hours emergency call form indicating that he had responded to a call from the fire department for a power outage in its engine house on a date that the engine house did not experience a power outage. Leave. A pre-termination investigation found insufficient evidence to show he deliberately falsified records or failed to respond to an emergency call. Although a written reprimand was issued, it was ultimately withdrawn. Suffering from emotional distress as a result of the investigation and reprimand, the employee went on paid medical leave for two months. Upon his return, he presented a statement from his psychologist releasing him without restrictions but his manager refused to accept it, telling him he needed a statement from a "real doctor." During this time period, he was given an overall performance rating of unsuccessful. The written evaluation identified five incidents in support of the rating. The employee was placed on a 13-week mandatory improvement plan that included a pay reduction. His pay was reinstated upon the completion of the plan. He then amended his discrimination charge, asserting that his pay was reduced and his psychologist’s note was rejected because of his race. Car accident. A year later, he lost consciousness while driving a city-owned car. He submitted to a fitness-for-duty exam, which found that the accident was likely caused by a hypoglycemic episode. He was then assigned to a warehouse where he would rarely drive or work alone. He subsequently sued the city for race discrimination in violation of Title VII and the district court granted summary judgment against his claims. No adverse action. On appeal, the employee argued that the reduction of his accrued medical leave constituted an economic loss because the city would have compensated him for any unused medical leave upon separation and thus that it was an adverse employment action. Disagreeing, the court observed that the city did not change his work conditions following its pre-termination investigation, terminate him, cut his pay or benefits, or change his job responsibilities. Rather, it approved his request for medical leave and allowed him to return after he presented a work-release statement from his physician. Explaining that the city provided him a favorable employment benefit that he took advantage of, the court affirmed the grant of summary judgment against this claim. Not similarly situated. The employee also argued that the city discriminated against him when it rated his overall performance as unsuccessful, placed him on the mandatory improvement plan, and temporarily reduced his pay. He contended that these circumstances gave rise to an inference of discrimination because the city treated him differently than two similarly situated Caucasian employees, an electrician and a mechanic. Rejecting his argument, the appeals court found that the mechanic’s repeated failure in one area—responding to emergency calls—was different from the employee’s alleged failure in five areas. Similarly, the electrician’s failure to properly address an outdoor lighting problem was a single failure that was dissimilar to any of the five issues identified in the employee’s performance evaluation. Thus, he failed to establish a prima facie case of race discrimination. Failure to exhaust. As to the employee’s claim that the city discriminated against him after his car accident by requiring fitness-for-duty examinations, assigning him to work in the warehouse, and rejecting his physician’s statement that he could return to work without restriction, the court found he failed to file a separate charge of discrimination for these claims and thus failed to exhaust his administrative remedies.

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