Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 3/3/2024 noted pet clinic loses Title VII lawsuit to former employee over hostile work environment. This legal battle concluded in August 2023. Sarah Crystal, a former employee of Cheyenne Pet Clinic, was awarded $500,000 by a federal jury after the jury found the clinic had created a hostile work environment under Title VII based on sexual orientation. The jury trial scrutinized the clinic’s treatment of Crystal. While the clinic was found liable for the hostile work environment claim, it was cleared of the other claims noted in the post. Because of statutory limits, the jury award of $500,000 in damages was adjusted (to the number in the post).
Let’s dive a bit deeper. Crystal originally filed her charge of discrimination with the state agency and EEOC in Oct. 2020, and received a notice of right to sue from the EEOC in Dec. 2021. She then filed suit in federal court in March 2022. Crystal alleged that she was employed by the Pet Clinic from June 2015 to Sept. 21, 2020, and that the owners, Dr. Christopher Church and Brooke Church, harassed gay employees about their sexual orientation. Crystal’s complaint details several instances where her sexual orientation was used against her – see the post. Crystal further alleges that her plans to purchase the clinic were derailed after disclosing that she dated a female employee (which also led to other adverse action as noted in the post).
In their April 2022 answer, the Churches denied the allegations, stating that while Crystal did report having dated a female employee, there was no discriminatory behavior or broken agreements regarding sale of the clinic. The current status of the Churches and management’s comments on the suit and team are both noted in the post.
TAKEAWAY: Make sure that all employees are treated the same, regardless of sexual orientation (or other protected characteristic) – liability for illegal action can be costly.
The post on Monday 3/4/2024 told us CEO’s assistant wins $36k after being bullied at work. Jourdan Piacun was a former personal assistant to the CEO of Raukura Hauora o Tainui, a health provider; she was initially a contractor before becoming a full-time staff member. Piacun said that she had concerns about the behavior of three employees toward her, including the first CEO from when she began her employment and the other 2 mentioned in the post. Piacun alleged that the first CEO was rude to her, including swearing at her and ridiculing her in front of others and doing the other things noted in the post. What Piacun alleges the other 2 employees did is also in the post. The employer told the tribunal that Piacun’s concerns about the first CEO did not amount to bullying and that her concerns were addressed in an independent investigation. What the employer said as to Piacun’s allegations against the other employees is in the post.
Raukura also said that it only became aware of the extent of Piacun’s concerns during the second independent investigation in 2019. The result of that investigation is noted in the post (and is not surprising). The health provider also called out Piacun for being reluctant when there were attempts to resolve her concerns.
Piacun has left the company but filed charges. The tribunal ruled that Piacun was indeed bullied at work (with detail on that in the post). Its ruling said “In short, Ms. Piacun was bullied at work.” The tribunal also rejected Raukura’s argument that it did not know about Piacun’s bullying until the second investigation. What the ruling said on that is in the post. It concluded that Piacun was unjustly dismissed in her work (constructively discharged) by Raukura’s actions. More details on that are also in the post. Raukura was ordered to pay Piacun a total of $36,000. Another portion of Piacun’s claim was dismissed because it had not been timely filed (details are in the post).
Note that while this case was in another country, one need only change a bit of spelling and the name of the tribunal to have it be one that could have occurred in any US court (with probably the same outcome).
TAKEAWAY: Employers must know what is deemed an illegal hostile work environment and prevent it from occurring (or continuing). Contact an employment lawyer for help.
The post on Tuesday 3/5/2024 told us condominium installs $1M of potable water pipes – good lesson in planning & funding large condo/HOA repair or replacement costs. Spanish Main Yacht Club was a 55-plus community in both the age of its residents and potable water lines.
Due to repeated system failures, it had to replace its potable water lines which were original to the condo’s construction in 1966. The new water lines cost about $1 million and took about 10 years altogether.
On Feb. 7, board members celebrated the official completion of the project. Members of the community lived through years of water issues and showed support; the project involved all 212 units and over 400 residents.
Some background. Spanish Main Yacht Club is the oldest condo community on Longboat Key. After years of issues with the water system, the system’s age began to show (a few examples are in the post). The old water lines were an early form of polyvinyl chloride, or PVC. The normal issues with the water pipes were compounded at certain times as noted in the post. Sometimes it took months to locate the exact source of the issue. And then when it was located, the first step was to shut off the water to fix the problem. Why that in itself became a problem is noted in the post. So all of the nearly 5,000 feet of water lines needed to be shut off whenever repairs were necessary. And then … see the post as to what would happen.
At some point the board decided to tackle this issue. Not only to remedy but to improve the efficiency of the community’s water system. That was based on what they found as part of their due diligence – see the post for details. The community held workshops and information sessions to try to educate residents about saving water. But reducing personal water usage didn’t solve all of the problems, so about 10 years ago the board decided to embark on replacing the potable water lines.
The first couple years were for identifying the extent of the problem and what needed to be done in construction. Then the board worked on finding an engineering team. After that, over three years, the condo association collected funds by increasing monthly dues. Residents were largely ok with that. What was amazing about the source of funds? See the post.
After securing the funds, the board found a construction company. The electric company’s undergrounding project also started, so the contractor said that the projects could not be worked on simultaneously (for the reason noted in the post – which makes logistical sense). That delayed the project until about a year ago, when construction began. Now, the new, more efficient potable water system has 24 valves in a loop system (and other things that make it easier to isolate only the area that needs to be shut off and not all units – see the post).
TAKEAWAY: Big items periodically come up that are the association’s responsibility. If there are insufficient reserves, or a reason not to completely fund the project with reserves, then the board must come up with the funding through either increased dues or a special assessment. Education is the key to owners buying in.
The post on Wednesday 3/6/2024 noted an HOA issues $500 fines for parking on your own driveway. But it is important to see why it does so – and what owners can do about it. The HOA issued a warning to homeowners to park in their garages or off of the driveway – or face a $500 fine. While some association board members seemed baffled by the strange rule and took the side of owners, the Stonebriar Village HOA subdivision (author’s note: it appears the community consists of at least the equivalent of a master association and some sub/junior associations, one of which is Stonebriar) can issue a hefty fine for not following a new rule. What the rule says is in the post. If owners fail to move their vehicles after a courtesy notice, they could be subject to a $500 fee. The chairman of the Security Committee mentioned the main reason behind the notices – see the post. This isn’t the first time the HOA imposed a “No Parking” driveway rule; an original rule was issued to keep up the community’s curb appeal.
A reporter decided to see what other sub/junior associations were doing about this. The manager of one association said that they have rules against boats and RVs in driveways, but not passenger vehicles. His reasoning? See the post. Another association said Stonebriar’s rule was ridiculous. What that was based on is also in the post. The author of the state HOA law said that the rule would be more likely seen in condominiums, not with single-family detached homes, and that most HOAs have rules against boats, RVs, trailers, and vehicles with advertisements in the driveway. But he noted a limit: see the post.
And what did Stonebriar’s president have to say about the new rule and its reception in the community? See the post. Even the board chimed in – again, see the post.
TAKEAWAY: Board members in PA condo and homeowner associations usually have the right to enact, change and revoke community rules, but getting community buy-in will be important to enforcement. A community association lawyer can also help.
In the post on Thursday 3/7/2024, we read that second Virginia ABC employee files whistleblower lawsuit against authority. That is the Virginia Alcoholic Beverage Control agency. The suit alleges that the employee was wrongfully put on administrative leave last May in retaliation for reporting “millions” of dollars’ worth of missing liquor inventory to executives and the Governor’s administration. The suit was filed in federal court by former Assistant Director of Retail Operations Thomas Aruanno. He alleges that former ABC CEO Travis Hill and current Chief Retail Operations Officer Mark Dunham took action as noted in the post (and is more than putting him on leave). Aruanno says that after that he was issued a disciplinary notice that was later withdrawn and then there were other actions taken that (as noted in the post) that drove him to quit. The various claims he made against ABC, Hill and Dunham are listed in the post. The ABC spokesperson said, “Virginia ABC is unable to comment on litigation.”
What is interesting (or perhaps makes it more credible?) is that many of the claims in Aruanno’s suit are mirrored in a separate suit brought by former ABC Director of Retail Operations Jennifer Burke in December. Both Aruanno and Burke were among the 4 officials put on admin leave in 2023 in connection with a string of 2022 embezzlements. What do Aruanno and Burke say about their involvement and subsequent actions? See the post.
Like Burke, Aruanno claims he flagged a series of problems with ABC inventory and shrink for Hill and Dunham that later led them to retaliate against him. Aruanno’s suit alleges that in early 2022, he determined “the ordering system appeared to be continually manipulated by Dunham and his team to reduce shipments of bestselling items” and a new warehouse constructed by ABC in Hanover County was short 500 spaces for items. Then a team of which he and Burke were members went to work – and found huge discrepancies as noted in the post. Apparently this was not the first occurrence; see the post. Aruanno alleges that he and Burke shared their findings with Dunham in spring 2022, but that Dunham told them to “hold off” sharing the information with ABC leadership and then never reported it. So Aruanno and Burke acted – see the post.
Aruanno alleges that in February 2023 ABC began convening “accusatory” meetings where he was questioned about lost inventory. What happened after one of those meetings? See the post (and get a mental picture). In March, ABC called Aruanno into a meeting to investigate any knowledge he had of a particular type of cash register transaction that was used in some of ABC’s embezzlement cases. Then there were April meetings – see the post. Then on May 4, 2023, Aruanno received a call from leadership saying he had been placed on administrative leave. Why? See the post. Three other ABC retail leaders, including Burke, were also placed on leave.
On May 6, Aruanno experienced a medical event; it is detailed in the post. That led to a call from Dunham on May 9 (which content and subsequent actions are in the post).
Aruanno’s complaint alleges emails and texts among Virginia ABC staff (which he obtained through a Freedom of Information Act request!) show that Dunham and ABC HR Director John Singleton planned a “raid” on Aruanno’s house. What they planned, and the raid’s purpose, are detailed in the post. Interestingly, when the newspaper filed the same FOIA request as that sent by Aruanno, ABC declined to send any documents (on the basis noted in the post).
Because they were scared of a raid by law enforcement on their residence, Aruanno’s adult children and mother-in-law hid in their rooms and locked their doors. After Aruanno’s wife emailed Hill to tell him the situation “is causing a great deal of stress on our entire family,” the special agent in charge of Virginia ABC’s Bureau of Law Enforcement was instructed to “release the agents back to their normal duties.” What did Aruanno allege about why this happened? See the post. On May 17, Aruanno returned his state-issued property to the authority without incident.
Oh but we’re not done. On June 5, Aruanno received a notice of pending disciplinary action in connection with the cash register transaction issue ABC had detected in the embezzlements. And there were more accusations – see the post. Aruanno says all of the accusations were false. ABC later withdrew the notice and he returned to work July 5. Aruanno alleges that upon his return he was told that his position had been eliminated due to “budget constraints” and was offered the options noted in the post. And there are more allegations as to the working terms and conditions – yes, see the post. Aruanno finally submitted his resignation from ABC on Sept. 24. What he said in that letter is in the post.
What does Aruanno seek in his suit? A jury trial for his case and damages (the amount is noted in the post). He wants the court to reinstate him to his former role with a raise and more as noted in the post. Stay tuned.
TAKEAWAY: Remember that an (former) employee need not succeed in the underlying claim to succeed in a whistleblower or retaliation claim – contact your employment lawyer immediately upon a hint of a claim or suit against your business.
The post on Friday 3/8/2024 was about getting reluctant employees back into the workplace. NOTE: while this is not a US case, it would probably come out the same here in the US. Pandemic restrictions ended in large part several years ago, but many employers are still struggling to get their staff back into the workplace (either full or part time). And even when there are benefits provided for working on-site and “penalties” of some type for not doing so.
One case is interesting because the senior employee in question had worked entirely from home during the pandemic. The arrangement was very successful but when she wanted to make it permanent, the employer refused. The tribunal accepted the employer’s reasons and found it legitimate for the wider business context to be taken into account when reaching the decision.
Ms. Wilson wanted to know why she couldn’t work from home permanently. She was a senior manager, a stellar performer during lockdown, and her evals were great (see the post). When the employer required managers to be in the workplace for 50% of their time, Ms. Wilson submitted a flexible working application for full-time remote working. The employer rejected it. The employer’s reasoning is in the post, including a list of what it felt were important parts of a senior manager’s on-site performance. One of the issues for the tribunal was whether the employer based its decision on incorrect facts because it took into account the wider business context.
The way Ms. Wilson’s line manager handled her request is a helpful guide. It won over the tribunal even though Ms. Wilson seemed like an ideal candidate for the remote arrangement on paper. The tribunal’s reasoning is in the post – and explains why an employer can (and should) look at the entire business context when considering a request for remote work.
TAKEAWAY: Employers can succeed in insisting that employees maintain a physical presence in the workplace where the role justifies this in the context of the business, even if they previously worked remotely for some or a long period of time. This is a fact-dependent inquiry that deserves the attention of an employment lawyer.
Finally, in the post yesterday 3/9/2024, we saw that DOL recovers $438K for 2 workers illegally terminated by Mercedes-Benz manufacturer after taking protected FMLA leave. Investigators with the DOL’s Wage and Hour Division found that Mercedes-Benz U.S. International Inc. illegally fired two production workers after they requested to use FMLA-protected leave. The purposes for the requested leaves are in the post. Not only were the requests denied, but the employer further discriminated against the workers by reprimanding them and denied monthly attendance bonuses because of absences. The result? See the post.
DOL’s investigators determined the employer also failed to Inform employees that they may be eligible for FMLA leave within five business days of learning their requests could qualify, reinstate workers to the same or equivalent positions., and the other things listed in the post. The investigation resulted in recovery of $219,312 for the former employees including missed earnings after being terminated and the other items detailed in the post.
TAKEAWAY: Employers must know how to calculate FMLA leave time when looking at absence for disciplinary or similar purposes. An employment lawyer can help.
York, Pennsylvania 17403