Wyatt Employment Law Report


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The Cold Hard Facts

By Michael D. Hornback

A recent Kentucky Court of Appeals decision is a reminder of a litigation truism –  there is no such thing as a “motion to change the facts.” Admittedly, I have handled numerous cases over the years wherein I wished, hoped and even prayed that I could file such a motion.  Much to my chagrin, a “motion to change the facts” is not available.  However, don’t despair because plaintiffs also find themselves wishing they could change the facts.  As the Kentucky Court of Appeals recently found, the “cold hard facts” are what they are, and a plaintiff’s subjective beliefs about the reason for her termination won’t carry the day.

In Conley v. Mountain Comprehensive Care Center, Inc., 2017 WL 3129215 (Ky. App., July 21, 2017), a licensed clinical social worker was terminated and sued her employer claiming age discrimination.  This case stems from Ms. Conley’s preparation and submission of a therapeutic treatment plan for a foster child directly to the Perry County Family Court, rather than to the Department for Community Based Services (“DCBS”).  It should be noted that Ms. Conley’s therapeutic treatment plan was apparently in conflict with Continue reading


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Post Young v. UPS: City of Florence, Kentucky Settles Pregnancy and Disability Lawsuit with Female Police Officers

By R. Joseph Stennis, Jr.

GavelThe City of Florence (“Florence” or “the City”) recently entered into a proposed consent decree, pending court approval, to resolve a discrimination lawsuit the Justice Department filed regarding two City female police officers.  The lawsuit, filed last month, alleges both officers were discriminated against based on pregnancy and disability grounds pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the American with Disabilities Act (“ADA”).  According to the complaint, Florence female police officers Lyndi Trischler and Samantha Riley requested light duty in 2014 when both were unable to perform their duties as patrol officers due to their pregnancies.  Officer Trischler also suffered from complications resulting from a diagnosed high-risk pregnancy and requested light duty as a reasonable accommodation.

Florence’s light duty policy at the time of Ms. Trischler’s and Ms. Riley’s requests was limited to employees with on-the-job injuries only.  The City also required that employees with non-work related illnesses, injuries, or conditions provide information that establishes they have “no restrictions” prior to returning to work.  Florence denied both officers’ requests and required them to take leave instead.

This was the first lawsuit filed by the Justice Department challenging an entity’s light duty policy following the U.S. Supreme Court’s ruling in last year’s Young v. UPS case.  In Young, UPS had a similar ‘employees injured on the job’ policy as Florence.  Peggy Young was a UPS pickup and Continue reading


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U.S. Supreme Court Addresses Statute of Limitations in Constructive Discharge Case

By Courtney Ross Samford

Supreme Court 2On May 23, 2016, the U.S. Supreme Court ruled that the limitations period for a constructive discharge claim under Title VII runs from the date the employee gives notice of his resignation, as opposed to the employer’s alleged discriminatory behavior, in Green v. Brennan, Postmaster General, No. 14-613, 2016 WL 2945236 (U.S. May 23, 2016).  The case involves Marvin Green, who worked for the U.S. Postal Service for 35 years.  He applied for a promotion in a nearby post office, but was not selected for the position.  As an African American male, Mr. Green complained that he was passed over because of his race.

Mr. Green began experiencing problems with his supervisors shortly after filing his complaint, which culminated in two supervisors accusing him of committing a federal crime.  Following an investigation, Mr. Green and the Postal Service entered into a settlement agreement on December 16, 2009, whereby the Postal Service agreed not to pursue any criminal charges against Mr. Green in exchange for his agreement to leave his current position.  The settlement agreement allowed Mr. Green to retire or accept a position for a considerably lower salary in a different location.  Mr. Green submitted his resignation on February 9, 2010.

Forty-one days after submitting his resignation (and 96 days after signing the settlement agreement with the Postal Service), Mr. Green contacted an Continue reading


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EEOC Now Using An Online Charge System

By Michelle Wyrick

EEOCAiming to improve public service, ease the administrative burden on staff, and reduce the amount of paper submissions and files, the U.S. Equal Employment Opportunity Commission (“EEOC”) has begun using an online charge system. The new system allows an individual who has filed a charge of discrimination to check the status of the charge online. In addition, the system provides an overview of the steps that charges go through from intake to resolution and provides contact information for EEOC staff assigned to the charge. Employers can also obtain information about the status of pending charges and communicate with the EEOC through the new system. All EEOC offices now use a digital charge system in which employers transmit and receive documents regarding discrimination charges through a secure online portal.

The Online Charge Status System may be used for charges filed on or after September 2, 2015. The system cannot Continue reading


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The EEOC Weighs in on HIV-Positive Workers

By Amanda Warford Edge

The Equal Employment Opportunity Commission (EEOC) has long considered HIV infection to be a disability within the scope of the Americans with Disabilities Act (ADA). From 1997 to 2014, the EEOC received in excess of 4,000 charges alleging ADA violations based on HIV status. In 2014, the EEOC resolved 197 charges and obtained over $800,000 for individuals who filed charges based on HIV status. The EEOC has also filed several lawsuits over the past few years against employers based on claims alleging failure to hire, discrimination and failure to accommodate individuals with HIV.

On December 1, 2015, in conjunction with World AIDS Day, the EEOC posted two publications that address HIV-positive workers. Through these publications, the EEOC makes clear that employers “cannot rely on myths or stereotypes about HIV infection when deciding what [they] can safely or effectively do.”

The first publication, entitled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” removes all doubt that those with HIV: (1) have workplace privacy rights; (2) are protected from discrimination because of Continue reading


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EEOC Proposes Updated Guidance to Address Increasing Number of Retaliation Claims

By Michelle D. Wyrick

With retaliation again reigning as the most frequently filed charge with the Equal Employment Opportunity Commission (“EEOC”) and retaliation charges having doubled since 1998, the EEOC has proposed updated guidance on retaliation. It seeks input on its proposed guidance through February 24, 2016. Comments may be submitted here in letter, email or memoranda format, or hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. The EEOC’s proposed guidance, which is more than seventy pages long, updates the EEOC Compliance Manual on Retaliation, which was issued in 1998.

The guidance explains the elements of a retaliation claim under federal anti-discrimination statutes and gives examples of what an EEOC investigator might look for in connection with a retaliation charge. Federal equal employment opportunity (“EEO”) laws preclude employers from Continue reading


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Kentucky Supreme Court Rules in Lawsuit Filed by Morbidly Obese Employee of Wagner’s Pharmacy

By Amanda Warford Edge

Employee-TerminationOn May 14, 2015, the Kentucky Supreme Court issued a ruling in Wagner’s Pharmacy, Inc. v. Melissa K. Pennington. Pennington had filed the lawsuit back in 2007, alleging that her employer, Wagner’s Pharmacy, discriminated against her by terminating her employment due to her morbid obesity. At the time of filing the lawsuit, Pennington weighed 425 pounds. She is just 5’4” tall.

Wagner’s cited Pennington’s poor personal appearance and declining sales as the reasons behind Pennington’s termination – not Pennington’s weight. Prior to her termination, Pennington had operated a food and drink concession truck owned by Wagner’s at Churchill Downs. She had been employed by Wagner’s for approximately ten years.

In support of her discrimination lawsuit, Pennington relied on the expert testimony of Dr. Gaar, a board-certified surgeon who had performed nearly 2,000 gastric bypass surgeries. Dr. Gaar testified in detail as to the causes of morbid obesity, stating that Continue reading