McKENNA EMPLOYMENT BULLETIN

James P. DeNardo and Kristin D. Tauras

August, 2013

 IF YOU ARE AN EMPLOYEE, DON’T ADMIT TERMINATION IF YOU WANT TO PLEAD

FAILURE TO RECALL
 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BASED ON SEXUAL ORIENTATION
DISCRIMINATION PREEMPTED BY THE ILLINOIS HUMAN RIGHTS ACT
 YOUR FLEX TIME POLICY MAY MEAN PUNCTUALITY IS NOT A JOB REQUIREMENT
 YOU MAY LOOK BUT YOU MAY NOT TOUCH
 YOUR REQUIREMENT OF A MENTAL EXAMINATION BEFORE AN EMPLOYEE RETURNS
TO WORK MAY NOT VIOLATE THE ADA

IF YOU ARE AN EMPLOYEE, DON’T ADMIT TERMINATION IF YOU WANT

TO PLEAD FAILURE TO RECALL

In Shelton v. OSF Saint Francis Medical Center, 2013 IL App (3d) 120628 (June 19, 2013), the
plaintiff alleged in a verified amended complaint that she was terminated from her employment.
The Court found this was a judicial admission. The plaintiff’s cause of action was based,
however, on the single theory of retaliatory failure to recall her to employment. The Court
concluded that the plaintiff’s admission in her complaint and numerous statements including her
letter to the employer and an agreed statement for trial showed that the judicial admission of
termination was binding and was not the result of inadvertence or mistake. Therefore, the
admission was fatal to her cause of action for failure to recall.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BASED ON SEXUAL

ORIENTATION DISCRIMINATION PREEMPTED BY THE ILLINOIS HUMAN
RIGHTS ACT

In Schroeder v RGIS, Inc., 2013 IL App (1st) 122483 (June 11, 2013), the plaintiff filed a claim
alleging intentional infliction of emotional distress against his former employer. The basis of his
intentional infliction claim was allegations of discrimination and retaliation based on the plaintiff’s
sexual orientation. The Court dismissed the plaintiff’s complaint and ruled it was a tort claim
inextricably linked to a sexual orientation discrimination claim under the Illinois Human Rights
Act. Therefore, the plaintiff’s claim was preempted and barred by the Illinois Human Rights Act.
Further, the Court found that the plaintiff’s claim was compensable under the Illinois Workers’
Compensation Act as a physical-mental injury. Thus, the plaintiff’s was also preempted and
barred by the exclusivity provision of the Illinois Workers’ Compensation Act.

YOUR FLEX TIME POLICY MAY MEAN PUNCTUALITY IS NOT A JOB

REQUIREMENT

In McMillan v. City of New York, 2013 WL 779742 (2d Cir. 2013), the plaintiff had a condition
that he treated with calibrated medication. The employer had a flex-time policy allowing
employees to arrive anytime between 9:00 and 10:00 a.m. Employees could leave between
5:00 and 6:00 p.m. Because of the plaintiff’s medications, he often arrived late to work,
sometimes after 11:00 a.m. For a period of 10 years, the plaintiff’s late arrivals were either
explicitly or tacitly approved. The employer refused to allow the plaintiff a later flex time arrival
of between 10:00 and 11:00 a.m. The plaintiff filed a claim under the ADA.

The Court held that physical presence at or by a specific time is not, as a matter of law, an
essential function of all employment. The Court found that because the employer’s flex time
policy permitted all employees to arrive and leave within one-hour windows, this implied that
punctuality and presence at precise times may not have been essential. The Court ruled that
while a timely arrival is normally an essential function, a court must still conduct a fact-specific
inquiry, drawing all inferences in favor of the plaintiff. The Court sent the case back for a
detailed analysis of the facts which could undermine the employer’s claim that a specific arrival
time was an essential function of the plaintiff’s position.

YOU MAY LOOK BUT YOU MAY NOT TOUCH

In Larry v. Bag-craft Papercon I, LLC, 2013 WL 1174653 (N.D. Ill. 2013), the employee alleged
that her supervisor offered to buy her cologne, complimented her shirt once or twice while
staring at her chest, and asked if the employee dated Mexican men. The supervisor offered to
take her out for her birthday. These were all of the facts the plaintiff alleged to support her claim
for a Title VII hostile work environment. The Court held the allegations did not show severe or
pervasive conduct which is required for a Title VII hostile work environment claim. The Court
found the behavior did not interfere with the employee’s ability to do her job. The supervisor
never physically touched her.

YOUR REQUIREMENT OF A MENTAL EXAMINATION BEFORE AN

EMPLOYEE RETURNS TO WORK MAY NOT VIOLATE THE ADA

In Owusu-Ansah v. Coca-Cola Co., 2013 WL 1896978 (11th Cir. 2013), the employer required
medical examinations and made inquiries as to whether an employee had a disability when a
former employee returned to work. Here, the employee had been placed on paid leave after
allegedly making threats against other employees and the employee was required to undergo a
psychiatric/psychological fitness-for-duty evaluation before returning to work. The Court held
the evaluation was job-related and consistent with business necessity. This was because the
employee’s ability to handle stress and work well with others was essential for his position.
Further, the employer had reasonable objective concerns about the employee’s mental state
and the safety of its staff. This concern was based on the employee’s meeting with his
supervisor in which the employee allegedly expressed concerns about discrimination, banged
his fist on a table, and claimed someone was “going to pay.” In addition, the employee had
already consulted with a staff psychologist and an outside psychiatrist.

McKenna Storer has offices located at:

33 N. LaSalle Street 666 Russel Court

Suite 1400 Suite 303
Chicago, IL 60602 Woodstock, IL 60098
(312) 558-3900 (815) 334-9690

This Employment Bulletin is intended to provide information of general interest and does not constitute
legal advice but it could be regarded as advertising. Readers should consult with their counsel before
taking any action based on the information in this publication. All rights reserved. Copyright 2013,
McKenna Storer.

For information, contact James P. DeNardo at 312.558.3922 or Kristin Tauras at 312.558.3923.