• Unsuccessful Appeal Subjected Plaintiff's Attorney to Possible Sanctions
  • May 15, 2014 | Author: Michael R. Lied
  • Law Firm: Howard & Howard Attorneys PLLC - Peoria Office
  • Corina Bass was a custodian for Joliet Public School District No. 86. She was assigned to clean the first floor at Cunningham Elementary School. She took a leave of absence.

    During the 2008-09 school year, the District hired Pike Systems to conduct a time-study of custodial duties at 11 of its schools.

    At Cunningham Elementary School, Pike concluded that the second floor took more time to clean than one shift permitted, while the first floor could be finished in less than one shift. Pike recommended that the restrooms on the second floor be reassigned to the custodian responsible for the first floor.

    While Bass was on leave, the District had the substitute first-floor custodian clean both the first floor and the second floor restrooms. She could do this during her shift. The District approved the reassignment of the second-floor restrooms to Bass. The Pike study also resulted in reassignments at other schools, with seven male custodians being assigned additional duties.

    Bass began having performance issues, which led to two suspensions without pay. Under the Collective Bargaining Agreement (“CBA”) Bass was permitted a one-time disability leave for up to twelve months, in addition to all other accrued sick leave. The CBA provided that employees who were absent after exhausting all leave were subject to disciplinary action, up to and including termination.

    Bass had taken two extended leaves of absence; these absences alone exceeded the amount of leave to which Bass was entitled under the CBA.

    Bass injured her back on August 12, 2010, and again took leave. Since she already had used two long-term disability leaves, Bass had no more available leave as of November 3, 2010.

    Bass got a doctor’s note indicating that she could return to work on light duty, but the district had a longstanding policy of not having light-duty assignments for custodians. Bass returned to work twelve days later she injured her back and was out for two and one half days.

    This new absence resulted in one and one half days of unexcused and unpaid time off. The District issued a written reprimand. Bass returned to work on November 19, 2010. On January 3, 2011, Bass failed to report to work. She provided a doctor’s note dated January 4 stating that she could not work because of severe back pain.

    The next day, Bass was told that her available leave would be exhausted on January 5, 2011, and that she would be fired if she did not report to work.

    Bass didn’t return to work. She brought another doctor’s note dated January 7, which provided no anticipated return date.

    The District held a meeting with Bass on January 13, 2011 to discuss her absences. Bass now offered a doctor’s note dated January 12, which stated that she could return to work, but with lifting restrictions. When asked when she would be able to return without restrictions, Bass did not reply.

    Bass was fired on February 2, 2011, based on job abandonment and failure to return to work after exhausting all available leave. Significantly, three male custodians also lost their jobs between 2008 and 2011 for the same reason.

    Bass filed an EEOC charge alleging that she was fired because she is a woman. The District Court granted summary judgment to the school district and Bass appealed.

    The appeals court observed that “when all is said and done, the fundamental question at the summary judgment stage is simply whether a reasonable jury could find prohibited discrimination.”

    In order to defeat summary judgment, the plaintiff must present evidence showing that she is in a class protected by the statute, that she suffered an adverse action and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason.

    Under the “direct” method, Bass had to present either direct or circumstantial evidence of discrimination in her opposition to summary judgment. Bass, however, offered no evidence that would allow a trier of fact to find that sex discrimination lay behind the District’s action. As the court pointed out, “speculation is no substitute for evidence at the summary judgment stage.”

    Bass also tried to rely on the “indirect” method, using the McDonnell Douglas test.

    Here, Bass initially needed to establish a prima facie case of discrimination. To do so she had to show (1) she was a member of a protected class; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) the employer treated similarly situated employees outside of the protected class more favorably.

    Under the circumstances, Bass could not show that she was performing her job satisfactorily or that the District treated males more favorably. Bass repeatedly missed work, and received written

    reprimands for her unexcused absences. Although she eventually returned to work, it was not for long. She failed to report to work again on January 3, 2011, at a time when she had exhausted all available leave. The court of appeals concluded that her violations of the District’s attendance guidelines showed she was not meeting the District’s legitimate expectations.

    Things didn’t just go badly for Bass. Bass’s attorney was ordered to show cause why he should not be sanctioned for filing a frivolous appeal. The court of appeals directed the clerk of the court to transmit a copy of its opinion to Illinois Attorney Registration and Disciplinary Commission for any action it deemed appropriate.

    Bass v. Joliet Public School Dist. No. 86, ---F.3d ---, 2014 WL 1229578 (7th Cir. 2014).

    Postscript: Plaintiff’s attorney satisfied the court that sanctions were not appropriate. Bass v. Joliet Public School Dist. 2014 WL 1399422 (7th Cir. 2014).