Key Point 8-11. Employees and applicants for employment who believe that an employer has violated a federal civil rights law must pursue their claim according to a specific procedure. Failure to do so will result in the dismissal of their claim.
A federal court in Pennsylvania ruled that a denominational agency did not engage in unlawful "national origin" discrimination against a Romanian-born employee as a result of (1) a single comment that the employee heard another employee make about immigrant workers, and (2) a requirement that the employee have a doctor's note authorizing all future sick days.
An American citizen of Romanian birth (the "plaintiff") was employed by a denominational agency for five years in the accounting department. From the beginning of her employment, the plaintiff's superiors complained about the quality and slowness of her work.
At a meeting to address these complaints, the plaintiff alleged that two fellow employees engaged in an inappropriate conversation about immigrants after the presidential election in 2004. Specifically, she claimed that they pointed at her and said that the reason Americans do not have enough jobs is because President Bush brings immigrants to the United States.
She filed a complaint with the human resources director, who investigated the matter and assured the plaintiff that any similar comments would not be tolerated.
After four years of employment, the plaintiff was informed that she must obtain a doctor's authorization for any future sick days. This requirement was due to concerns the plaintiff's superiors had concerning the number of sick days she was taking as well as discrepancies involving the number of sick days she took and the employer's payroll records.
The plaintiff's supervisor was asked by an assistant treasurer to submit to him a draft of her annual performance evaluation for her fourth year of employment. The treasurer instructed the supervisor to include in her evaluation a summary of work-related problems. The supervisor refused to do so, and submitted an evaluation that rated the plaintiff's overall performance as "exceeds expectations."
The supervisor was cited for insubordination and removed as the plaintiff's immediate supervisor. The treasurer proceeded to complete the plaintiff's annual performance evaluation himself. He referred to her work-related problems, and downgraded her overall rating from "exceeds expectations" to "meets expectations." The treasurer continued to receive complaints about the plaintiff's performance.
In her fifth and final year of employment, the plaintiff submitted a doctor's note to her employer stating that she would be out indefinitely because of depression. She never returned to work, but remained employed until the expiration of her 12 weeks of unpaid leave under the federal Family and Medical Leave Act.
She had been warned by letter that her failure to return to work during this 12-week period would result in the termination of her employment. This letter informed the plaintiff that the employer was not required to hold her job open, and provided her with the names and telephone numbers of contact persons with whom she could discuss her options. She did not contact anyone.
She later sued her former employer for discriminating against her on account of her national origin in violation of Title VII of the Civil Rights Act of 1964 which prohibits employers with 15 or more employees and engaged in interstate commerce from discriminating in any employment decision on the basis of a person's race, color, national origin, gender, or religion.
Hostile work environment
The court noted that "employers violate Title VII when they harass their employees so severely or pervasively that they alter the conditions of the employee's employment and create an abusive working environment." The plaintiff insisted that this occurred when she overheard the two other employees make the comment about immigrant workers taking jobs from American citizens. The court disagreed: "[The plaintiff] has failed to produce any evidence showing that the discrimination she was subjected to was severe or pervasive. The evidence only shows that one comment was ever made … which referenced Immigrants in any manner. She needs to show more than this one incident. While she has presented evidence showing that these women made other disparaging comments, such as calling her stupid, she has not shown that these comments, which are offensive and unprofessional, were motivated by her national origin. Verbal harassment, no matter how unpleasant and ill-willed, is simply not prohibited by Title VII if not motivated by the plaintiff's [national origin.] The evidence does not establish that the discrimination [the plaintiff] suffered on account of her national origin was severe or pervasive."
Doctor's authorization
The plaintiff claimed that the requirement that she obtain a doctor's authorization for any future sick leave was intended to discriminate against her because of her national origin. The court noted that to establish a case of national origin discrimination, the plaintiff had to show are that she (1) was a member of a protected class, (2) was qualified for the position in question, (3) suffered an adverse employment action, and (4) the circumstances support an inference of discrimination.
The court noted that the plaintiff proved the fi rst two elements, but failed to prove the third since there was no evidence of an adverse employment action against her based on her national origin. It noted that an adverse employment action "is an action by an employer that alters the employee's compensation, terms, conditions, or privileges of employment, deprives her of employment opportunities, or adversely affects her status as an employee."
The employer's "employee handbook" contained the following provision: "A doctor's release to return to work may be required after any illness of 3 days or more in duration. A doctor's release to return to work may be required after any illness resulting in any time missed from work. Your supervisor will notify you when a doctor's release is required for an illness less than three days in duration."
The court noted, based on this provision, that "one of the terms of [the plaintiff's] employment was that she could be required at anytime to present a doctor's note following an absence for illness. The fact that the provision was not enforced until [the employer] deemed it necessary did not effect a change in the terms of [the plaintiff's] employment. She has not shown that she suffered an adverse employment action. Other courts … have also held that the imposition of a doctor's note requirement is not an adverse employment action."
The court also concluded that the plaintiff failed to prove the fourth element (the circumstances surrounding the imposition of the requirement of a doctor's note did not give rise to an inference of discrimination). Quite the contrary, the plaintiff "was treated similarly to other employees with regard to the doctor's note requirement."
What this means for churches
This case illustrates the importance of objective employee evaluations. The plaintiff's immediate superior wanted to give the plaintiff an overall evaluation of "exceeds expectations," without any reference to her chronic absenteeism and performance problems.
This is a typical response by supervisors, since inflated evaluations are deemed preferable to the confrontation that often accompanies more candid and objective evaluations. In this case, the assistant treasurer acted properly by amending the evaluation to recount the absenteeism and performance problems, and by reducing the overall evaluation to "meets expectations."
Annual performance evaluations generally are not legally required for church employees. In fact, churches often are better off not using them at all as opposed to having evaluations that are inflated. inflated evaluations will significantly limit a church's ability to dismiss an employee who is protected by a state or federal employment discrimination law, since a strong inference arises that the "real" reason an employee with inflated evaluations is terminated is not job related, but rather due to discriminatory intent.
Second, this case demonstrates that employment discrimination claims based on a hostile working environment require proof of a level of discrimination that is both severe and pervasive, and this generally is not possible with isolated, off-hand comments. 2007 WL 2461822 (E.D. Pa. 2007).
