Roundup: 7th, 8th, 9th and 11th Circuits

Acrophobic worker pursues ADA claim; WARN Act only applies to mass layoffs; e-mail receipts don't fall under FACTA; private employers can deny jobs to bankrupt applicants

7th Circuit: Acrophobic Worker Pursues ADA Claim 

On May 10, the 7th Circuit ruled in Miller v. Illinois Department of Transportation (IDOT) that an employee could pursue a disability discrimination lawsuit against his employer, which he claims fired him because of his fear of heights. 

When Darrell Miller began working as a highway maintainer for IDOT in 2002, he expressed his discomfort with heights, and IDOT accommodated him by allowing team members to swap duties so he could avoid high-altitude tasks. 

In March 2006, Miller had a panic attack when his supervisor instructed him to change the light bulbs underneath a bridge. A doctor diagnosed Miller with acrophobia and deemed him unfit to perform his duties, and an IDOT administrator told Miller to request nonoccupational disability status. Miller insisted he could work with reasonable accommodations, but IDOT denied his request and then fired him in June 2007 for allegedly threatening another employee.

Miller filed suit under the Americans with Disabilities Act. The district court granted summary judgment to IDOT, finding that Miller’s request was unreasonable.

The 7th Circuit reversed and remanded the decision. The court said Miller’s request was reasonable because IDOT had routinely accommodated him, and IDOT’s hostile work environment could indicate that Miller’s termination was retaliatory. 

8th Circuit: WARN Act Only Applies to Mass Layoffs

The 8th Circuit ruled June 8 in Sanders v. Kohler Co. that an employer must provide a 60-day termination notice only if the company is undergoing a mass layoff.

In December 2006, 247 union workers went on strike at a Kohler manufacturing plant. Three months later, Kohler hired 123 replacement employees.

In March 2008, Kohler settled its dispute with the union and agreed to reinstate the strikers. The company fired the replacement workers and returned 103 of the 247 strikers to their positions.

The fired replacement workers filed a complaint stating that Kohler didn’t provide the 60-day termination notice required by the Worker Adjustment and Retraining Notification Act (WARN Act) when a company undergoes a mass layoff.

The district court noted that the WARN Act defines a mass layoff as a workforce reduction resulting in a loss of at least 50 employees. The court calculated Kohler’s reduction in force by subtracting the number of reinstated workers (103) from the number of fired replacement workers (123), meaning only 20 workers were laid off. The court granted summary judgment to Kohler. The 8th Circuit affirmed the judgment. 

9th Circuit: E-mail Receipts Don’t Fall Under FACTA

E-Mail Receipts do not share the same identity-theft protections as the receipts outlined in the Fair and Accurate Credit Transactions Act (FACTA), the 9th Circuit ruled on May 24 in Simonoff v. Expedia Inc.

In September 2008, Dimitriy Simonoff purchased travel arrangements through web-based company Expedia. He then sued Expedia, claiming the company violated FACTA when it e-mailed him a receipt that included the expiration date of his credit card.

FACTA disallows merchants from printing the expiration date or more than the last five digits of a cardholder’s credit card or debit card numbers on any electronically printed receipt at the time of the transaction.

The district court found that FACTA doesn’t apply to e-mail receipts and granted Expedia’s motion to dismiss. The 9th Circuit affirmed the decision, concluding that the statute’s clear language only refers to tangible receipts.

11th: Private Employers Can Deny Jobs to Bankrupt Applicants 

Private employers can refuse to hire job applicants who have filed for bankruptcy, the 11th Circuit decided May 17 in Myers v. TooJay’s Management Corp.

Eric Myers filed for Chapter 7 bankruptcy in January 2008. Seeking a fresh start, he relocated and began working at Starbucks. The bankruptcy court discharged his debts in May 2008.

In July 2008, while still employed at Starbucks, Myers applied for a position at TooJay’s Gourmet Deli. He interviewed with the manager and filled out paperwork, including a form that would allow TooJay’s to review his credit history.

According to Myers, the manager told him he would begin working at TooJay’s on Aug. 18, 2008. Myers gave his two-week resignation notice to Starbucks on August 4. About a week later, TooJay’s informed Myers that it had withdrawn the employment offer because of information in a credit report. Myers complained of discrimination and sued TooJay’s.

The district court found that TooJay’s hadn’t violated the Bankruptcy Code, which prohibits government employers from denying employment to currently or formerly bankrupt individuals but doesn’t forbid private employers from doing so. The 11th Circuit affirmed the ruling.

Ashley Post

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