In June of 2010, the United States District Court for the Western District of Kentucky heard a case that involved a woman and her car accident and the bad faith violation (Unfair Claims Settlement Practices Act) she alleged against the Defendant. (See Phelps v. State Farm Mutual Automobile Insurance Co., 2010 WL 2471845 (W.D.Ky.)).

The facts of this Kentucky car accident case are as follows. The Defendant was driving in Louisville when he pulled out from a gas station in front of the Plaintiff causing the Plaintiff’s car to strike his car. Liability is not in question. The Plaintiff was transported to a hospital and was diagnosed with herniated disc requiring surgery. Id. The Louisville car accident was in July of 2003 and Plaintiff’s surgery was on October 15, 2003. Id. Plaintiff submitted her claim to Defendant’s insurance company (State Farm) for her personal injuries and damage to her car. Id. State Farm began to investigate the claim and found in February of 2004 that Plaintiff had a preexisting back problem from a 1999 car accident. Id. After further investigation, Defendant found out that all therapy for the 1999 car accident ended in 1999 and thus decided to make an offer of $25,000 to settle this claim. Id.

After depositions Defense counsel advised his client to increase their offer and finally told Plaintiff’s car accident lawyer that the policy limits were $50,000. Id. Plaintiff offered to settle for the full amount and Defense counsel countered at $40,000. Id. Then Defense counsel found out about some more medical bills and then finally offered the full $50,000. Id. Plaintiff’s Louisville car accident attorney then filed the UCSPA lawsuit in state court. Id. The case was removed to Federal court. Id.

The UCSPA has 17 unfair claims settlement practices. Id. Plaintiff invoked only 3 of them. Id. Plaintiff stated that the Defendant “failed to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; … not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; and compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds.” (cites omitted). Id.

The Court after reviewing the facts dismissed the first and third UCSPA arguments of Plaintiff and focused in on the second. Id. Further, the Court pointed out that a condition precedent to bringing a statutory bad faith action is that the claimant was damaged by reason of the violation of the statute. Id. Thus, the Court held that the Plaintiff was given an opportunity to put in evidence that she was humiliated in having to wait for her fair settlement of the policy limits. Id. “Because the plaintiff has settled and dismissed the underlying suit, the only damages she can claim in this action are for injuries sustained as a result of State Farm’s allegedly unreasonably delay in offering her the $50,000 limits of its policy.” Id.

If you have been the subject of a Louisville automobile accident matter, please call and speak to a Louisville automobile accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In Burris, the Plaintiff in this car accident case appealed his case because she felt she was entitled to more money. But, this Court reviewing the trial’s court transcript and reading the appellate briefs did not agree. “A jury can refuse to award pain and suffering, even it if does award medical damages, if there is a reason to believe that the plaintiff did not incur those damages.” Id.

There is proof that before the accident Plaintiff had been suffering from fibromyalgia, and had neck and back issues. Id. After the accident Plaintiff complained of neck and back pains. Id. Her private doctor sent her to two other doctors. One diagnosed her with TMJ and the other with bulging disks in her back. Id.

Plaintiff filed her car accident lawsuit on March 30, 2005. Id. The defense put on an expert questioning whether her back injuries were caused by this car accident. Id. After the trial, the jury awarded Plaintiff $1,055. Id. This was the amount of the ambulance and emergency room bills. Id. The jury did not award any monies for pain and suffering. Id. This made Plaintiff’s car accident lawyer not very happy.

The Court agreed with the law that “a jury is free to believe all, part or none of the testimony of witnesses who appear before them. (cites omitted). Expert testimony is permitted to supplement the decision-making process of the ‘fact finder’ not to supplant it.” (cites omitted). Id. The jury was free to believe whichever expert witnesses it wished. It appears in this case that the defense expert was believed more than plaintiff’s expert. And since “the credibility of witnesses, including experts, is for the jury to decide.” this court will not supplant its judgment for that of the jury’s. Id.

And finally as to the pain and suffering in this car accident case, many courts do recognize that “a jury can properly deny a claim for pain and suffering, even if it awarded medical expenses.” Id. The courts leave this as a ‘fact-specific question’ and thus one to be decided on a case by case basis. The jury is free to decide that no pain and suffering occurred or that if there was pain and suffering that it was so minimal that no monetary award was warranted. Id.

If you have been the subject of a car accident involving pain and suffering, please call and speak to a car accident pain and suffering lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

Plaintiff in her Louisville pregnancy discrimination case alleged pregnancy discrimination in violation of the Kentucky Civil Rights Act. Id. “To successfully plead the cause of action, a plaintiff must allege four elements: 1) that she is a member of a protected class (i.e. that she was pregnant), 2) that she suffered an adverse employment action, 3) that she is qualified for the position, and 4) that a similarly situated employee outside her protected classification was not subject to the adverse action.” (cites omitted). Id. Defendant argued that the complaint did not allege that anyone outside the plaintiff’s protected class was treated any better than she was. Id. To this argument the Court did not agree.

The second count alleged common-law wrongful discharge. Id. The Kentucky civil Rights Act preempts the common law in this area. (cites omitted). Id. “Thus the plaintiff’s action will lie only under the statutory framework, and the common-law claim must be dismissed. Similarly, we must dismiss count C (for intentional infliction of emotional distress) because KRS Chapter 344 preempts IIED claims arising out of the same events as an employment-discrimination claim.” (cites omitted). Id.

The Court also agreed with the defense that pregnancy does not constitute a “disability” within the meaning of KRS Chapter 344. Id. Courts in this area have consistently state that pregnancy is not a disability. Id. Pregnancy is not a disability with the meaning of the Americans with Disabilities Act. Id. (Call and speak to a Louisville pregnancy discrimination lawyer to find out more on this topic).

As to the final count, the pregnancy retaliation count, the Court dismissed this claim as well. Plaintiff alleged that she was fired in relation for complaining about the way she had been treated after announcing her pregnancy in violation of KRS 344.280. Id. But, ‘retaliation’ is only illegal if it comes “because the plaintiff has opposed a practice declared unlawful by this chapter.” Id. The predicate is that Plaintiff has to allege that there was an illegal practice for the aggrieved plaintiff to oppose under this chapter. Id. In the case at hand, plaintiff could not and did not allege that the defendant did anything unlawful by this chapter. Id.

If you have been the subject of a Louisville pregnancy discrimination and retaliation matter, please call and speak to a Louisville pregnancy discrimination and retaliation lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

As to the attorneys’ fees, the settlement agreement was to pay the Plaintiff’s attorneys one third of the total settlement. Id. This Court after reviewing the facts of the case held that the attorneys’ fees provision was fair. All the plaintiffs in this overtime for unpaid wages case knew that the attorneys would get one-third of the settlement. Id.

If you have been the subject of Kentucky Overtime and Unpaid Wages for some type of mandatory meeting, please call and speak to a Kentucky overtime and unpaid wages lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

“The FLSA exempts employees who are “employed in a bona fide executive, administrative, or professional capacity.”” (cites omitted). Id. In order to be exempt under the administrative exemption it must be demonstrated that “1) the employee is compensated at a salary or fee basis at a rate of not less than $455 per week, 2) the employee’s primary duties include the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, and 3) the employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” (cites omitted). Id.

To qualify for the learned professional exemption, the employee must “1) the employee must perform work requiring advanced knowledge; 2) the advance knowledge must be in a field of science or learning; and 3) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.” (cites omitted). Id.

The job that Plaintiff held did not require any advanced knowledge. The job description required that the person have “some course work in social work, counseling, psychology or related disciplines beyond high school…” Id. No special degree was necessary. Id. Further, the job Plaintiff performed did not require advance knowledge in a field of science or learning. Id.
It has been held in other Courts that helicopter pilots are not learned professionals. Though they are highly trained and skilled they did not possess an academic degree to exempt them from FLSA overtime. Id.

Thus, if you are an employee in Kentucky that thinks that he or she is being misclassified into an administrative or learned professional exemption to FLSA overtime allowance, then you should contact a Kentucky overtime lawyer such as Andrew Alitowski. Your title does not dictate whether or not you should be earning overtime; what you actually do is what dictates.

If you have been the subject of Kentucky FLSA Overtime matter, please call and speak to a Kentucky FLSA overtime attorney at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

The case was before the Court on a motion to conditionally certify the proposed class as permitted by the FLSA for purposes of notice and discovery. Id. The Plaintiffs also wanted the names and contact information of those that held the same or similar job within the past 3 years, they wanted this information on a Microsoft Excel format, and they wanted 90 days for the Notice period to have time to send out the notices. The Court agreed to all this and granted Plaintiff’s Motion. The reasoning is as follows.

Plaintiffs in their motion submit 35 declarations of people that though there were called outside Plant Engineers, were in fact not ‘engineers.’ Id. They did not have an engineering degree or any other special training or education. Id. Further, they were not licensed by the State of Michigan as professional engineers. Id. As stated by one Plaintiff, they were more like ‘clerical people,’ not like an engineer in its true sense. Id.

In this FLSA overtime case, Plaintiffs also testify as to how they have no control over a large portion of the work they do. Id. Plaintiffs’ work consists of apply standards to what they do o specifications that are already predetermined to a given situation using predetermined guidelines and rules. Id. Also, the Plaintiffs do not supervise, hire, fire evaluate, or discipline any other employees, and no one reported to them. Id.

In order to get the class certification, the Plaintiffs must first prove that they are actually similarly situated and all plaintiffs must signal in writing their affirmative consent to participate in the action. Id. There are two stages to the process. The first certification, also known as the “notice stage” takes place early in the litigation and is where the court determines whether the suit should be conditional certified. Id. The second stage occurs much later after all the opt-in forms have been received and discovery has been concluded. Id.

In this FLSA overtime case, the Plaintiffs are only at the first stage. They are seeking conditional, not final certification. Id. It is up to the Plaintiffs to show that the opt-in plaintiffs are similarly situated to the lead plaintiffs. Id. In the case at hand, the Plaintiffs have done so and this Court approved the conditional class. Id. As the Court noted, “the plaintiff must show only that his position is similar, not identical, to the positions held by the putative class members.” (cites omitted). Id.

As to the Plaintiffs’ proposed notice, the Court had to rule on a few minor technical issues as to what the actual “Notice” said. The Defendants argued that some of the language was misleading or too strong and the Court ruled on these matters accordingly. Further, the Court granted the 90 day period to handle this in that 30 days was too short a time to handle retuned or undeliverable mail. The 90 days was reasonable.

Thus, if you are a Louisville Overtime worker and have a question as to whether your case should become a class action lawsuit, contact a Louisville overtime lawyer. Mr. Alitowski, a Louisville overtime lawyer, can assist you and your co-workers in a failure to pay overtime lawsuit.

If you have been the subject of Louisville Overtime Non-payment of wages, please call and speak to a Louisville overtime Non-payment of wages lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In Ms. Seals’ instance, she did not work overtime, but the Court held, that she was at least entitled to the pay for the hours she worked over the twenty hours per week for which she was not paid. Id. The Court also had to determine the exact amount of time that Plaintiff was entitled to her unpaid wages. An employee is entitled to paid for every hour worked for an employer.

Also, as Plaintiff correctly points out, “the FLSA requires that all hours worked must be compensated.” (cites omitted). Id. “Congress enacted the FLSA to guarantee either regular or overtime compensation for all actual work or employment.” (cites omitted). Id.

Thus, if you believe you are not getting paid for hours that you worked or for overtime in Louisville, Kentucky, and if you think that there are other workers like you in a similar situation, you should call and speak to a Louisville overtime lawyer to see if you are entitled to this back pay and/or overtime.

If you have been the subject of Louisville Overtime or Unpaid Wages for some type of mandatory meeting, please call and speak to a Louisville overtime or unpaid wages lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In Gonzales, on January 2, 2004, the Defendant caused a minor car accident to the vehicle in front of her, hitting that vehicle from behind. Id. Just prior she was at a complete stop and traveled no more than 2 feet before she struck that car in the rear. The Plaintiff, a 10 year old boy, was a back seat passenger. Id. After the accident the police arrived and no one reported injuries. Id. The car Plaintiff was in was not seriously damaged, and Defendant’s car had just a fist sized dent in the bumper where it impacted the trailer hitch on Plaintiff’s car. Id. Shortly thereafter, Plaintiff claimed that he was injured and that he sustained whiplash. Id. He treated with a Dr. Hellman having $2,683 worth of medical bills. Id. The car accident case went to trial on September 15, 2008. Id.

As far as his medical condition, Plaintiff did not see a doctor until six days after the car accident. Id. The Jury after hearing all the evidence found for the Defendant. Id. The Plaintiff wanted the jury’s verdict tossed out for not being valid and consistent with the evidence. The Court denied their motion and stated “Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory in character: the jury may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable.” Id.

The jury awarded zero damages to the Plaintiff. They did not award anything for the medical bills. This was allowed under Tennessee law. The car accident was a low impact car accident and from that the jury was free to award or not award anything they wanted… within reason. In the car accident case at hand, the Court held that the Plaintiff failed to prove either injury or causation. Id.

If you have been the subject of a Kentucky car accident matter, please call and speak to a Kentucky car accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In Clemens, Ms. Clemens was injured in an automobile accident on June 10, 2004. At trial, Plaintiff had the deposition testimony of her family doctor and her car accident chiropractor read into evidence. Id. The jury awarded zero damages so Plaintiff appealed. Based on the facts, this Court denied the appeal.

The extent of Plaintiff’s injuries could thus only be established through Plaintiff’s subjective responses to her doctors. Thus Plaintiff’s credibility was a crucial issue to be resolved at trial. Id. It is well established that “the trier of fact is free to believe or disbelieve any witness, including an expert witness.” (cites omitted). Id. Further, a jury is free “to reject the plaintiff’s unrebutted medical expert testimony after it became clear at trial that the expert’s opinions were based primarily on the plaintiff’s subjective explanations of her symptoms and not on objective factors.” (cites omitted). Id. In the case at hand, the accident was a low-speed automobile accident. Id. The x-rays taken right after the accident did not show any injury. Id. Plaintiff’s own chiropractor testified that “such strain and sprain injuries might cause pain or might not result in any symptoms at all.” Id. Plaintiff’s treatment was that she saw her chiropractor 3 times in the first week and then failed to return until five weeks later and then did not see him again until six weeks after that. Id. Also, Plaintiff did not submit to an MRI though her own doctor scheduled her to go to one. Id.

Thus, in the case at hand, the jury did not believe Plaintiff’s subjective complaints and with no real medical objective evidence to back her up, in this low speed automobile accident crash, the jury decided not to award Plaintiff any money and this Appellate Court upheld their decision.

If you have been the subject of a Kentucky automobile accident matter, please call and speak to a Kentucky automobile accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In Gersh, Plaintiff Gersh appealed a lower court’s judgment whereby Mr. Gersh was found liable for the serious bodily injuries he caused to Ms. Bowman following an automobile accident. The jury found Plaintiff liable for past and future medical expenses, pain and suffering, and impairment of her power to work and earn money, as well as punitive damages. Id.

Ms. Bowman sustained a jury award of $43,185.81 in future medical expenses, $250,000 for the impairment to work and earn money, $2,000,000 for pain and suffering and lost enjoyment of life, and $100,000 in punitive damages. Id.

Plaintiff’s Kentucky automobile accident lawyer tried to argue that an award of punitive damages was not available in a case like this. This Court did not agree. The award was not based on passion or prejudice. The jury in this automobile case was allowed to award whatever they wanted and only awarded $100,000. There was sufficient evidence to support such an award.

Further as to the large award for pain and suffering in this Kentucky automobile accident case, the Court held that such an award was not excessive either. Ms. Bowman had serious injuries and many surgeries. The award was consistent with the injuries, both physical and mental that Ms. Bowman sustained in this Kentucky automobile accident case.

If you have been the subject of a Kentucky automobile accident matter, please call and speak to a Kentucky automobile accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In Hutchinson, the Plaintiff was involved in a car accident on July 21, 2003. Id. The car was rear-ended by the defendant as the Plaintiff waited to turn. Id. The trial judge awarded the Plaintiff over $100,000. Id. The Defendant appealed claiming not all of her injuries were from this accident. This Appellate Court modified the award by half. The reasoning is as follows.

Plaintiff then returned to work the next day and did seek further medical attention until 6 weeks after the car accident. Id. When Plaintiff met with the doctor she made complaints of headaches and right shoulder and arm pain. Id. Plaintiff saw this doctor until April 13, 2006. Id. But, during the course of treatment, Plaintiff was involved in two other car accident cases. One of the car accidents was in November of 2004 and the other car accident was on April 6, 2006. Id. Plaintiff claims she sustained whiplash as a result of the November 2006 car accident and in the second car accident, her car was totaled. Id.

This Appellate Court reviewed the record and held that “a plaintiff in a personal injury action such as this “must introduce evidence which affords a reasonable basis for the conclusion that is more likely than not that the conduct of the defendant was a cause in fact of the result.”” (cites omitted). Id. “Damages that are speculative or remote in nature are not allowed as a basis for recovery.” Id. Plaintiff claimed that the first car accident was the sole reason for her injuries and denied that either of the next two car accidents exacerbated or aggravated her conditions. Id. Evidence was entered that showed that Plaintiff prior to the July 2003 car accident had a history of migraine headaches. Id. The Plaintiff did not prove that her migraine headaches came from this car accident. Id. Thus, this Court took away that portion of her award but kept the claims for shoulder and neck injuries. Id.

If you have been the subject of a Kentucky car accident matter, please call and speak to a Kentucky car accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

The issue of whether a person has suffered a threshold injury is one for the court as a question of law. Id. A serious impairment of body function means “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” Id. The Courts look to see if the Plaintiff is able for the most part to lead a normal life. (cites omitted). Id. It has to be more than a minor interruption in life. Id. The Plaintiff’s entire life course is looked at and if that course is still on track, then one’s injuries do not meet the serious impairment of body function threshold. Id.

In the car accident case at hand, the Plaintiff had not worked for two years prior to the accident. Id. She did not have any real proof that she actually looked for any work. Id. Further, as to Plaintiff’s head injuries, the Plaintiff was self diagnosed with lifelong dyslexia since she was in high school. Id. As to Plaintiff’s depression from this car accident, Plaintiff had depression beforehand because of her daughter’s ongoing health problems and the recent death of her father. Id. Finally, as a result of this car accident, Plaintiff claims she could no longer play golf. Id. Though when asked, Plaintiff could not testify to her handicap, did not own golf clubs or name any courses she played. Id. Also, she claimed she could not dance as a result of this car accident. Though, Plaintiff could not name any locations where she has danced recently. Id.

Accordingly, the Court held that she had not suffered a serious impairment of body function and dismissed this car accident case. A Kentucky lawyer who handles car accidents can further explain this case and many others regarding car accidents to you.

If you have been the subject of a Kentucky car accident matter, please call and speak to a Kentucky car accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In TBCI, Ms. Shaholaa was involved in a car accident in October of 2003 where she claims she suffered a brain injury. Id. The bench trial held that she had not suffered a brain injury and she appealed. This Appellate Court sustained the trial court’s decision. Id.

The defense put forward evidence that Plaintiff failed to disclose a prior back injury. Id. Further, the defense in this car accident case put forward taped surveillance showing Plaintiff engaged in activities she claimed she could not do. Id.

Plaintiff for this car accident put on testimony from the neuropsychologist where he claimed she suffered from a head injury; ie. post traumatic brain injury. Id. Then the chiropractor sent Plaintiff to TBCI where a board certified psychiatrist treated Plaintiff in June of 2004 until January of 2006 where she racked up a bill of over $62,000. Id. Defense attorneys for this car accident put experts on the stand that said the work done by the psychiatrist was excessive and not necessary. Id.

The Court then reviewed the applicable law in a car accident case like this and when and how a medical provider should be reimbursed. “An insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular product or service…” Id. After reviewing all the testimony and records this Court was satisfied that Plaintiff did not suffer a closed head injury. Id. The Court weighed the testimony of the doctors that testified and who had and did not have scientific credibility. Id. The Court found that some of the testing showed gross inconsistencies and evidence. Id. And that there were really no documents or evidence of head trauma but for the Plaintiff’s own subjective testimony that she hurt her head. Id. And that all of the doctors that treated her were basing their evaluations and tests off of the subjective complaints of the Plaintiff car accident driver. Id.

Accordingly, this Court like a Kentucky car accident Court would do, dismissed the case against the Plaintiff who only put forward evidence of her injuries based on her subjective complaints and doctors testimony and diagnoses based on those complaints.

If you have been the subject of a Kentucky car accident matter, please call and speak to a Kentucky car accident lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

The Kentucky Court next reviewed Plaintiff’s discrimination claim under the Kentucky Civil Rights Act (KCRA). “In order to assert a prima facie claim of sexual harassment based on hostile work environment, the plaintiff must show by a preponderance of the evidence “… 1) that she was a member of a protected class, 2) that she was subjected to unwelcome sexual harassment; 3) that the harassment was based on sex; 4) that the harassment unreasonably interfered with her work performance by creating a hostile, offensive or intimidating work environment; and 5) that there is a basis for employer liability.” (cite omitted). Id. In order for there to be a hostile work environment, the conduct must be severe or pervasive and must unreasonably interfere with an employee’s performance. Id. In the instant case, the Court held that the incidents were not severe or pervasive and in light of the fact that the Plaintiff did not complain to her supervisors regarding the harassment, that it did not unreasonably interfere with her work. Id.

Finally, as to Plaintiff’s Kentucky claim for retaliatory discharge, the Court held that this claim was not valid. “To establish a prima facie case of retaliation, Landers must establish that: 1) she engaged in protected activity; 2) the Defendant knew of the exercise of her civil rights; 3) subsequently, the Defendant took an employment action adverse to the Plaintiff; and 4) the adverse employment action was a result of her exercise of the protected activity.” (cite omitted). Id. In this case, Plaintiff admittedly “never complained, asked for company assistance, or took any other action to protect herself from what she now characterizes as inappropriate conduct and to put the company on notice so that it could take corrective or preventative action.” Id. Thus, the Defendant was entitled to summary judgment. Id.

If you have been the subject of hostile work environment sexual harassment, please call and speak to a Kentucky hostile work environment sexual harassment employment lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

In Highlands Hospital Corporation v. Preece, 2010 WL 569745 (Ky.App.), the Kentucky Court of Appeals held that the employer did violate the employee’s FMLA rights. The reasons are as follows.

Ms. Preece began working for the defendant as a Certified Nursing Assistant in July of 2000. Id. In April of 2004 she discovered she was pregnant. Id. She went to her HR person and was told she had 12 weeks of leave available but was not told how that leave was to be calculated. Id. Plaintiff was never informed she could use her accumulated vacation and sick days instead of FMLA leave. Id. Beginning June 16, 2004 up until the birth of her child on October 21, 2004, Plaintiff took intermittent leave. Id. She did not know that her time off was going towards her FMLA leave. Id.

Plaintiff returned to work on December 30, 2004. Id. She then took off work on January 18, 2005 and February 15, 2005 due to postpartum depression. Id. Defendant pursuant to its excessive absenteeism policy took it upon themselves to use the two subsequent work absences from Plaintiff as a valid reason to terminate her for excessive absenteeism. Id. Plaintiff found a Kentucky FMLA lawyer and sued.

“The FMLA permits eligible employees of a covered employer to be absent from work for twelve weeks during a twelve-month period for specified reasons, including the birth of a child. Upon return to employment, the employee is entitled to be restored to the same or an equivalent position.” (cites omitted). Id.

In order to prevail on her FMLA interference claim Plaintiff was required to establish that: “1) she was an eligible employee; 2) HHC was an employer; 3) she was entitled to leave under the FMLA; 4) she gave notice of her intention to take leave; and 5) HHC denied her FMLA benefits to which she was entitled.” (cites omitted). Id.

Plaintiff’s FMLA case focused on defendant’s failure to give her sufficient information regarding the calculation of her benefits and the time used prior to her 2005 absences. Id. There are different ways to calculate a “calendar year.” “If an employer fails to choose an option specified, the court must measure the twelve-month period by the option that provides the most beneficial outcome for the employee.” (cites omitted). Id. “In addition to providing information regarding the method selected, the employer is required to inform the employee of leave designated as FMLA leave.” (cite omitted). Id.

During this FMLA trial, Plaintiff had a budget manager from the Defendant’s employment testify as to how things were done. “She explained that HHC planned to eliminate senior employees to reduce costs and the costs associated with FMLA leave, such as employee replacement.” Id. This testimony was held to be relevant as it went to establish “that the employer acted in bad faith for the purpose of liquidated damages.” (cite omitted). Id.

Further, during the trial it was self evident that the Defendant’s records were not kept in the best of ways. They were not accurate and confusing. The award of liquidated damages is valid under the FMLA statute. “The doubling of the jury’s award is premised upon a finding that the employer acted in bad faith and that it did not have objectively reasonable grounds for its act or omission.” (cite omitted). Id. Based on the facts of the case, the trial court held that the award of liquidated damages was valid and not an abuse of discretion.

As to front pay, generally reinstatement is considered the preferable remedy but front pay is appropriate when reinstatement is not feesable. Id. In this case, the trial court awarded Plaintiff $27,000 in front pay which was equivalent to one year’s worth of salary. Id. The trial court considered that Plaintiff did try to find another job but could not and that during this search her nurse’s aide certificate had expired and required recertification. Id.

And finally, as to Plaintiff’s claim for intentional infliction of emotional distress, the Court held that the FMLA does not provide for that. Id. Further, FMLA does not provide for punitive damages. (cite omitted). Id. Thus, this claim was not sustainable. Though Plaintiff did try to argue that her intentional infliction of emotional distress claim came from her firing and state law, the Court after reviewing the law determined that such a claim was not supportable.

If you have been involved in a Kentucky FMLA case that you would like to find out the answers to, please call and speak to Kentucky FMLA attorney Andrew S. Alitowski at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!