Note: You may do this case in your teams, in pairs or individually based on your team's preferences Background Assume that you are a relatively newly hired employee at Sunabi. Gail has had the following conversation with you: "I'm very concerned about the situation with Ginny. I know very little about this situation, but I think it needs some immediate attention. I am totally swamped, and I remember when we hired you that you told us you had expertise and experience dealing with conflict. I need you to really look into this and to give me some advice about what is going on, what our options are, and what you recommend we do. Please review the situation and send me a memo and provide a short briefing summarizing your findings and recommendation." . . Deliverable Memo: On the due date each team (or individual) should submit memo to Gail Format: 3 single-spaced pages or less to D2L (APA Cites) Debrief in Class: Come to class prepared to give a recommendation on Ginny. Memo Questions: Please answer the following questions: 1. Problem: What is the main problem that Sunabl faces? 2. Evidence: What are the main legal issues facing Sunabi as a result of the dispute with George? 3. Evidence: What are the main managerial issues facing the company as a result of the dispute with Ginny? 4. Analysis: What are the main options for resolving this conflict and their strengths and weaknesses? 5. Solution: What action do you specifically recommend that Gail do to resolve this conflict and why is this the best course of action? 6. Solution: What actions do you recommend that Sunabi take to prevent this situation from happening again in the future? Page 1 of 1 298 words Focus 116% SUNABI: THE CASE OF THE DISGRUNTLED EMPLOYEE "So if Sunabi doesn't give me my promotion into management, I'm seriously thinking about suing," said Ginny. Gail told Ginny she would look into her allegations and get back to her next week. Gail hung up the phone, sighed, and began to piece together what had happened to make Ginny so angry. Gail Ostrowski is the human resources director for Sunabi, Inc., a national pharmaceutical company with over 1000 employees. Gail has been at Sunabi for only three months. Although she had never met Ginny Sherman, a 24-year-old salesperson for Sunabi, Inc., Gail did know a little about her because she had just decided two weeks ago to pass her over for a promotion in favor of an older salesman named Thurston Heller. She decided to review her notes on the phone call from Ginny to get her version straight in her mind before exploring the rest of the facts. el ri n Ginny's Story Ginny told Gail that she had been very excited about her employment opportunities at Sunabi when she took the sales job two years ago after graduating from college with a bachelor's degree in management. Although her annual salary of $40,000 was lower than she had wanted, according to Ginny she had been promised by Joan Williams, her interviewer, that substantial raises and promotions were frequent at Sunabi. Two other things had also concerned Ginny about Sunabi at the time she interviewed with the company two years ago. The first was that Ginny really wanted to be in management, not marketing. Ginny said that Joan had told her it was Sunabi's policy to place all new hires in sales positions at least for a few months so that they could really understand Sunabi's customers, but that those employees who wanted to move into management were transferred to management positions quickly. The other thing that troubled Ginny a little was that the average age of the employees holding management positions at Sunabi was 40 years old. According to Ginny, Joan had admitted that Sunabi had until recently been more comfortable with older employees but had just adopted a new policy to hire and promote more younger people like her. Ginny had decided to accept Sunabi's job offer based on what she perceived to be Joan's promises. UN odun BS Ginny had been assigned the southwestern part of the state as her territory. This was a rural area and because of the distances between customers, Ginny typically spent 2-3 days per week on the road visiting doctors, pharmacists and hospitals to tell them about new Sunabi drugs and to distribute free samples to them. The other 2-3 days of each week she spent in her office in a spare bedroom of her apartment doing paperwork on her sales. Although Ginny worked alone for the most part, her supervisor Alicia Garibaldi accompanied her on sales trips several times each month. Ginny told Gail that she had really enjoyed her first year and a half at Sunabi. She loved driving around her territory where there was a beautiful vista around every bend, and liked meeting and talking with her customers. She added that she had received good evaluations from her supervisor Alicia and had even received a $1,500 raise at her first annual review. Sunabi, Inc Page 2 About five months ago, Ginny went on, she had taken a fall while snowboarding and wrenched her back pretty badly. Although her back felt better after a week off of work, she aggravated it every time she had to get in and out of her car carrying her 20 pound Sunabi sample case. Within three weeks after her fall, Ginny could no longer sit for more than half an hour without having to stand up and walk around to relieve the pain. This made it difficult for her to drive around her whole territory visiting customers, since she frequently had to drive 75 miles between towns. She also often could not carry her sample case because of the pain. Her doctor told her that although back exercises might eventually be able to reduce Ginny's nain it was likely that she would have hack problems for the rest of her life in the Page 1 of 4 2156 words DE Focus 116% Her doctor told her that although back exercises might eventually be able to reduce Ginny's pain, it was likely that she would have back problems for the rest of her life. In the meantime, the doctor told Ginny not to sit for more than 30 minutes at a time, not to drive extended distances, and not to carry anything weighing more than 10 pounds. As a result of her back pain, Ginny told Gail, she had been forced to cut back to 1-2 days per week on the road visiting her customers. Realizing the need for personal customer contact, she had substituted frequent phone calls and email messages for her personal visits, and, although she has been a little below her quota for the last few months, she assured Gail that she is still an effective salesman, all things considered. According to Ginny, her supervisor Alicia knew she had cut back her days on the road because of her back problems and had told her not to worry about it. In fact, Alicia had seemed so confident in Ginny that she had not accompanied her on any sales calls for the past two months. Last month Ginny's supervisor Alicia was promoted, and her job had become available. Ginny had applied for it, since it was a management position and it paid a starting salary of $50,000, significantly above her $41,500 salesperson salary. Much to her surprise, she had not received the promotion. Instead, Thurston Heller, a 45-year-old who had been a realtor before joining Sunabi as a salesman six months ago, got the nod. Ginny had been surprised and angered at the news, since she had received good evaluations and thought she had been promised by Joan in her interview two years ago that she would move into management quickly Wanting to find out what happened, Ginny had asked Alicia why she had not gotten the job. According to Ginny, Alicia had at first been evasive, then vague, as though she was embarrassed about the real reason. She finally told her that Thurston had gotten the job because customers want older salesmen. Ginny said Alicia also told her that hedsales performance had not been good for the last five months and that "either you get back out on the road and start selling some product, or you start looking for another job." Ginny told Gail she was totally shocked by Alicia's comments. She had told her about her back problems, and she hadn't seemed to be concerned about her spending less time visiting her customers. She had also never told her that her performance was below expectations. In fact, Ginny interpreted her failure to accompany her on any sales trips during the past two months as a vote of confidence in her abilities and performance. Ginny felt her criticisms were unfair and completely unfounded. N "I think Sunabi has violated all sorts of laws in refusing to promote me," Ginny had concluded. "So, if Sunabi doesn't give me my promotion into management, I'm seriously thinking about suing." Sunabi, Inc. Page 3 Alicia's Story Gail had decided to promote Thurston over Ginny on Alicia's recommendation without a great deal of investigation or discussion. So, she decided to talk with Alicia about her version of what had happened with Ginny. Alicia told Gail that Ginny had done well, if not spectacularly, her first year at Sunabi. She usually met her quota for the month, and at her first annual review Alicia had told her that she was doing just fine and had given her a raise of $1,500, the standard raise for salespeople after having completed one year. At this meeting Ginny had asked about opportunities for promotion into management, but Alicia had said that it would be better if she got a little more experience before putting in for a transfer. According to Alicia, she had recommended against Ginny's promotion because her performance had dropped significantly after she hurt her back and Alicia doubted that Ginny could perform the job because of her back injury. After all, the manager's position would require Ginny to supervise five salespeople, and she would have to accompany each salesperson on several sales calls per month, requiring her to spend significant time in the car. Alicia didn't think Ginny's back would allow her to do that. In addition about four months ago Page 2 of 4 2156 words LE Focus salesperson on several sales calls per month, requiring her to spend significant time in the car. Alicia didn't think Ginny's back would allow her to do that. In addition, about four months ago she had started receiving complaints from customers that Ginny was not visiting them as often as she should, and some customers had reported that when Ginny did visit, she seemed distracted and vague. Alicia told Gail she believed Ginny was self-medicating with sample Sunabi muscle-relaxant pills, which require a doctor's prescription, in order to relieve her back pain. Although Alicia can't prove it because Sunabi has not yet conducted its annual inventory of its drug samples, she strongly suspects it because of the customer complaints and because Ginny seems to resupply her stock of samples more frequently than her customer visits would normally warrant. Alicia estimates Ginny has probably taken about $250 worth of Sunabi pills over the past few months. When Gail asked Alicia whether she had told Ginny that customers wanted older salespeople, Alicia admitted that she might have said something about customers wanting Sunabi representatives to be easy to talk to and tended to like to see some gray hair because it indicated a certain level of experience and maturity. "I said it because it's true," Alicia told Gail. When Gail asked whether Alicia had told Ginny that her performance was unsatisfactory or had confronted her about her suspicions that she was using Sunabi samples, Alicia said Ginny had been below quota for the last few months, but admitted that she had not formally told Ginny that her performance was unsatisfactory. Alicia said she had periodically asked Ginny how her back was doing and when she thought she'd be able to get back to her regular schedule, which Alicia thought was a clear indication to Ginny that it was time she got back to work. Alicia had not directly confronted Ginny about her suspicions about her use of Sunabi pills nor had she reported her suspicions to anyone at Sunabi because she was reluctant to accuse Ginny without direct proof. In response to Gail's question about why Alicia had not accompanied Ginny on any sales calls for the last two months, Alicia became defensive. She said Ginny's schedule had become so unpredictable that it was impossible to plan her schedule around her. She also admitted el n .N that she did not enjoy spending the day with Ginny because all she ever did was complain about her back. She told Gail Ginny was a problem employee and it would be best for everyone if Sunabi found a way to get rid of her. Almost as an afterthought, Gail then asked Alicia whether she had ever had any training on how to be a manager. Alicia said she had not, although she had on occasion requested that Sunabi provide such training. w Joan's Story Gail thought that in order to round out the picture of Ginny's experience at Sunabi, she had better talk to Joan about what Ginny had been told when she was hired. At that time Gail was not yet the director of human resources and had not been involved in any way in Ginny's hiring. Joan did not remember any specific conversations with Ginny but checked her notes and told Gail the following. Joan had interviewed Ginny first at a career fair at her college, and then again when she visited Sunabi's regional office for a follow-up interview. She had seemed concerned about her salary, and Joan had told her it was common to receive raises at regular intervals assuming adequate performance. According to Joan's notes, Ginny had also been concerned about being a salesperson because she really wanted to be in management. Joan's notes indicated she had told her it was Sunabi's policy to start new hires in sales but that high-achieving salespeople who wanted to move into management could expect to do so quickly. Finally, Ginny had asked about the ages of Sunabi's managers, and Joan had said the average age was about 40 but had also told her that Sunabi was making a concerted effort to hire and promote more younger people. I Joan went on to remind Gail that at the time Ginny was recruited, Sunabi was concerned about being sued for age discrimination against young job applicants. Joan was therefore under intense pressure from Sunabi to interview and hire young salespeople. Joan, who was 52 at the time she interviewed Ginny, was worried that if she did not recruit enough young employees, she might lose her job to a younger person who would be more successful connecting with young applicants. Therefore, Joan admitted to Gail, she might have been somewhat more optimistic in her responses to Ginny's questions than she should have been but she never intended to tell Ginny anything that wasn't potentially true. Page 4 of 4 2156 words Focus apel oor nern Test, N proc 1165 Based on her interviews with Alicia and Joan, as well as on Ginny's phone call, Gail realized Sunabi may have more than a few management problems. She also was worried that Ginny might actually have some grounds for her threatened lawsuit but did not know how strong her legal claims might be. In response to her request for a summary of the law, Sunabi's lawyer wrote the following memorandum for her. SUNABI LAW MEMO Ginny Sherman's case raises many potential legal issues, the most immediate of which are disability discrimination, age discrimination, sex discrimination, misrepresentation, theft of controlled drugs, Sunabi's legal responsibility for keeping track of its drug samples, and Sunabi's vicarious liability for any accidents caused by Ginny while driving under the influence of the pills. The following memo describes the legal standards associated with each issue. 1. Disability Discrimination The federal Americans with Disabilities Act ("ADA") prohibits employers from discriminating against anyone with a disability in hiring, firing, promotion, compensation and training decisions. According to the ADA, an individual with a disability is a person who: has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. In order to win an ADA case, Ginny must first establish a prima facie case by showing that she has a disability, she is a "qualified individual" under the ADA, and Sunabi discriminated against the employee because of the disability. Ginny must first prove she has a disability. The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of a person's major life activities. Thus, Ginny must show 1) she has a physical impairment, 2) she is impaired in one or more major life activities, and 3) her physical impairment substantially limits one or more major life activities. A back injury is a physical impairment. An addiction to the illegal use of drugs is not a disability under the ADA, but individuals who are not illegally using drugs, but who are erroneously perceived as being addicts and as currently using drugs illegally, are protected by the ADA (EEOC, perceived as being addicts and as currently using drugs illegally, are protected by the ADA (EEOC, 1992). Major life activities include sitting, standing and lifting. An impairment "is substantially limiting if it significantly restricts the duration, manner or condition under which an individual can perform a particular major life activity as compared to the average person in the general population's ability to perform that same major life activity." Factors to consider in determining whether a person is substantially limited in an activity include "( the nature and severity of the impairment, (ii) the duration or expected duration of the impairment, and (iii) the permanent or long term impact... resulting from the impairment." To be a "qualified individual" under the ADA, Ginny must be qualified for the position she seeks and must be able to perform the essential functions of the job with or without reasonable accommodation. The essential functions of a job "are those functions that the individual who holds the position must be able to perform unaided or with the assistance of a reasonable accommodation." An accommodation is "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." A reasonable accommodation can include a variety of actions, including providing necessary equipment or restructuring a job. Job restructuring means that an employer may reallocate the nonessential, marginal duties of a job, or may change when and how the essential functions are to be performed so that a disabled employee can perform the job. n N An employer is not required to reallocate essential job functions, nor must an employer make an accommodation that constitutes an undue hardship. "Undue hardship" means "any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business." Because employers are not required to accommodate disabilities of which they are unaware, It is normally the responsibility of a disabled employee to request a reasonable accommodation from her or her employer. If Ginny can prove her initial case, Sunabi can then defend by showing it had a legitimate, nondiscriminatory reason for failing to promote Ginny. The burden then shifts back to Ginny to show Sunabi's proffered reason for its action was merely a pretext and the true reason was discriminatory. An employer may be liable for disability discrimination under the ADA even if the employer had a legitimate reason for taking the adverse job action if the employer was also motivated by a discriminatory purpose (so-called "mixed-motive" case). Should Ginny win her ADA case, she would be entitled to reinstatement with or without back pay or any other damages the court may deem appropriate, including compensatory and punitive damages and attorney's fees, litigation expenses and costs. If Sunabi successfully demonstrates that the outcome would have been the same even without the discriminatory intent, Ginny may not recover monetary damages but may receive attorney's fees and costs demonstrated to be directly attributable to pursuing her claim. 2. Age Discrimination The federal Age Discrimination in Employment Act prohibits discrimination only against workers who are 40 years old and older. Because Ginny is only 24 she is not protected by federal law. The law of many states, however, including the state law that is applicable to sunabi, protects workers of all ages from age discrimination. In order to win an age discrimination cate under state law, Ginny must show she was qualified for the job and an adverse job action was taken against her because of her age. Sunabi must show it had a legitimate, nondiscriminatory reason for its action, such as failure adequately to perform the job. The burden of proof then shifts back to Ginny to show Sunabils proffered reasons for its action are merely a pretext for a discriminatory action. If Ginny were to win her state age discrimination suit the court could award Ginny damages to compensate her for the harm done, plus her attorney's fees. 3. Sex Discrimination Federal law protects employees from being discriminated against based on sex. In order to win a sex discrimination case, Ginny mist show she was qualified for the job and an adverse action was taken against her because of her sex Sunabi must show it had a legitimate, nondiscriminatory Page 2 of 4 1838 words OlFocus 116% UN CONCIME VUOI SAU Ormu TUNTUU worry reason for its action, such as failure adequately to perform the job. The burden of proof then shifts back to Ginny to show Sunabi's proffered reasons for its action are merely a pretext for a discriminatory action. If Ginny were to win her state age discrimination suit, the court could award Ginny damages to compensate her for the harm done, plus her attorney's fees. 4. Misrepresentation 2 Ginny may claim that Joan, when she interviewed her, engaged in fraudulent or negligent misrepresentation. In order to win a fraudulent misrepresentation claim, Ginny would have to prove that Joan misrepresented a material fact, that she intended to deceive Ginny, that Ginny reasonably relied on Joan's misrepresentation when she decided to accept the job at Sunabi and that Ginny suffered harm as a result of her reliance on Joan's misrepresentation. A fact is "material" ifa reasonable person would deem the fact important in making a decision, or if the person who makes the misrepresentation has reason to know the fact is important to the decision-maker. Negligent misrepresentation consists of the same elements except that it is not necessary to prove that Joan intended to mislead Ginny; she may have done so innocently, believing her statements to be true. If Ginny were to win a fraudulent or negligent misrepresentation claim, she could recover from Sunabi compensatory and consequential damages for the harm she has suffered as a result of the misrepresentation. N 5. Theft of Drug Samples If Ginny has in fact been using Sunabi sample pills, she might have committed the crime of theft. A person commits theft if she knowingly takes property belonging to another with the purpose of depriving the rightful owner of the property. If the value of the property taken is not more than $1,000 the penalty is a fine of up to $1,000 and/or up to six months in jail. If the value is over $1,000, the penalty is a fine up to $50,000 and/or 10 years in prison. Moreover, Ginny may have violated both state and federal regulations governing the possession of controlled drugs. If Ginny is using Sunabi drug samples without a prescription, she may be guilty under state law of criminal possession of drugs or fraudulently obtaining drugs, both of which offenses carry a penalty of up to five years and/or a fine of up to $50,000. Federal law provides for a penalty of up to ten years and/or a fine of no more than $250,000 for knowingly selling, purchasing or trading a controlled drug. 6. Sunabi's Control of Drug Samples Sunabi is required by federal law to conduct at least an annual comprehensive inventory of all drug samples in the possession of its salesmen. If this inventory reveals any significant loss of samples, including theft, Sunabi must investigate the loss and report such loss to the Food and Drug Administration If Ginny is convicted of selling, purchasing or trading drug samples in violation of federal law, Sunabi could be assessed a penalty of no more than $50,000 assuming this is only the first or second such incident. Subsequent incidents expose Sunabito a penalty of up to $1,000,000 for each violation Sunabi can avoid a fine if it presses charges against Ginny itself or if Sunabi diligently implements an audit system designed to detect violations such as Ginny's. 7. Vicarious Liability If Ginny were to cause an accident by driving under the influence of Sunabi pills, or in any other way harm someone while under the influence, Sunabi could be held liable for the harm done under several theories. First, if Ginny was within the scope of her employment when the accident occurred, Sunabi could be liable under the doctrine of respondeat superior. An employee's action is considered within Page 3 of 4 1838 words EX Focus + 116% w the scope of employment if it was incidental to conduct authorized by the employer, especially if the conduct was done in furtherance of the employer's business. Thus, for example, if Ginny were driving to visit a Sunabi customer and caused an accident, she would most likely be considered to be within the scope of employment and Sunabi could be held liable for the damage done. Second, Sunabi could be found negligent itself for retaining an unfit employee or failing adequately to supervise its employee. Sunabi could thus be liable if it knew or should have known that Ginny presented an unreasonable risk of harm to third parties and Sunabi failed to take adequate precautions. The dollar amount of the employer's potential liability depends on the facts of the case, but generally will be calculated to compensate the victim for the harm done, including medical expenses and pain and suffering. t I I pei Dor 1 er n est, N Note: You may do this case in your teams, in pairs or individually based on your team's preferences Background Assume that you are a relatively newly hired employee at Sunabi. Gail has had the following conversation with you: "I'm very concerned about the situation with Ginny. I know very little about this situation, but I think it needs some immediate attention. I am totally swamped, and I remember when we hired you that you told us you had expertise and experience dealing with conflict. I need you to really look into this and to give me some advice about what is going on, what our options are, and what you recommend we do. Please review the situation and send me a memo and provide a short briefing summarizing your findings and recommendation." . . Deliverable Memo: On the due date each team (or individual) should submit memo to Gail Format: 3 single-spaced pages or less to D2L (APA Cites) Debrief in Class: Come to class prepared to give a recommendation on Ginny. Memo Questions: Please answer the following questions: 1. Problem: What is the main problem that Sunabl faces? 2. Evidence: What are the main legal issues facing Sunabi as a result of the dispute with George? 3. Evidence: What are the main managerial issues facing the company as a result of the dispute with Ginny? 4. Analysis: What are the main options for resolving this conflict and their strengths and weaknesses? 5. Solution: What action do you specifically recommend that Gail do to resolve this conflict and why is this the best course of action? 6. Solution: What actions do you recommend that Sunabi take to prevent this situation from happening again in the future? Page 1 of 1 298 words Focus 116% SUNABI: THE CASE OF THE DISGRUNTLED EMPLOYEE "So if Sunabi doesn't give me my promotion into management, I'm seriously thinking about suing," said Ginny. Gail told Ginny she would look into her allegations and get back to her next week. Gail hung up the phone, sighed, and began to piece together what had happened to make Ginny so angry. Gail Ostrowski is the human resources director for Sunabi, Inc., a national pharmaceutical company with over 1000 employees. Gail has been at Sunabi for only three months. Although she had never met Ginny Sherman, a 24-year-old salesperson for Sunabi, Inc., Gail did know a little about her because she had just decided two weeks ago to pass her over for a promotion in favor of an older salesman named Thurston Heller. She decided to review her notes on the phone call from Ginny to get her version straight in her mind before exploring the rest of the facts. el ri n Ginny's Story Ginny told Gail that she had been very excited about her employment opportunities at Sunabi when she took the sales job two years ago after graduating from college with a bachelor's degree in management. Although her annual salary of $40,000 was lower than she had wanted, according to Ginny she had been promised by Joan Williams, her interviewer, that substantial raises and promotions were frequent at Sunabi. Two other things had also concerned Ginny about Sunabi at the time she interviewed with the company two years ago. The first was that Ginny really wanted to be in management, not marketing. Ginny said that Joan had told her it was Sunabi's policy to place all new hires in sales positions at least for a few months so that they could really understand Sunabi's customers, but that those employees who wanted to move into management were transferred to management positions quickly. The other thing that troubled Ginny a little was that the average age of the employees holding management positions at Sunabi was 40 years old. According to Ginny, Joan had admitted that Sunabi had until recently been more comfortable with older employees but had just adopted a new policy to hire and promote more younger people like her. Ginny had decided to accept Sunabi's job offer based on what she perceived to be Joan's promises. UN odun BS Ginny had been assigned the southwestern part of the state as her territory. This was a rural area and because of the distances between customers, Ginny typically spent 2-3 days per week on the road visiting doctors, pharmacists and hospitals to tell them about new Sunabi drugs and to distribute free samples to them. The other 2-3 days of each week she spent in her office in a spare bedroom of her apartment doing paperwork on her sales. Although Ginny worked alone for the most part, her supervisor Alicia Garibaldi accompanied her on sales trips several times each month. Ginny told Gail that she had really enjoyed her first year and a half at Sunabi. She loved driving around her territory where there was a beautiful vista around every bend, and liked meeting and talking with her customers. She added that she had received good evaluations from her supervisor Alicia and had even received a $1,500 raise at her first annual review. Sunabi, Inc Page 2 About five months ago, Ginny went on, she had taken a fall while snowboarding and wrenched her back pretty badly. Although her back felt better after a week off of work, she aggravated it every time she had to get in and out of her car carrying her 20 pound Sunabi sample case. Within three weeks after her fall, Ginny could no longer sit for more than half an hour without having to stand up and walk around to relieve the pain. This made it difficult for her to drive around her whole territory visiting customers, since she frequently had to drive 75 miles between towns. She also often could not carry her sample case because of the pain. Her doctor told her that although back exercises might eventually be able to reduce Ginny's nain it was likely that she would have hack problems for the rest of her life in the Page 1 of 4 2156 words DE Focus 116% Her doctor told her that although back exercises might eventually be able to reduce Ginny's pain, it was likely that she would have back problems for the rest of her life. In the meantime, the doctor told Ginny not to sit for more than 30 minutes at a time, not to drive extended distances, and not to carry anything weighing more than 10 pounds. As a result of her back pain, Ginny told Gail, she had been forced to cut back to 1-2 days per week on the road visiting her customers. Realizing the need for personal customer contact, she had substituted frequent phone calls and email messages for her personal visits, and, although she has been a little below her quota for the last few months, she assured Gail that she is still an effective salesman, all things considered. According to Ginny, her supervisor Alicia knew she had cut back her days on the road because of her back problems and had told her not to worry about it. In fact, Alicia had seemed so confident in Ginny that she had not accompanied her on any sales calls for the past two months. Last month Ginny's supervisor Alicia was promoted, and her job had become available. Ginny had applied for it, since it was a management position and it paid a starting salary of $50,000, significantly above her $41,500 salesperson salary. Much to her surprise, she had not received the promotion. Instead, Thurston Heller, a 45-year-old who had been a realtor before joining Sunabi as a salesman six months ago, got the nod. Ginny had been surprised and angered at the news, since she had received good evaluations and thought she had been promised by Joan in her interview two years ago that she would move into management quickly Wanting to find out what happened, Ginny had asked Alicia why she had not gotten the job. According to Ginny, Alicia had at first been evasive, then vague, as though she was embarrassed about the real reason. She finally told her that Thurston had gotten the job because customers want older salesmen. Ginny said Alicia also told her that hedsales performance had not been good for the last five months and that "either you get back out on the road and start selling some product, or you start looking for another job." Ginny told Gail she was totally shocked by Alicia's comments. She had told her about her back problems, and she hadn't seemed to be concerned about her spending less time visiting her customers. She had also never told her that her performance was below expectations. In fact, Ginny interpreted her failure to accompany her on any sales trips during the past two months as a vote of confidence in her abilities and performance. Ginny felt her criticisms were unfair and completely unfounded. N "I think Sunabi has violated all sorts of laws in refusing to promote me," Ginny had concluded. "So, if Sunabi doesn't give me my promotion into management, I'm seriously thinking about suing." Sunabi, Inc. Page 3 Alicia's Story Gail had decided to promote Thurston over Ginny on Alicia's recommendation without a great deal of investigation or discussion. So, she decided to talk with Alicia about her version of what had happened with Ginny. Alicia told Gail that Ginny had done well, if not spectacularly, her first year at Sunabi. She usually met her quota for the month, and at her first annual review Alicia had told her that she was doing just fine and had given her a raise of $1,500, the standard raise for salespeople after having completed one year. At this meeting Ginny had asked about opportunities for promotion into management, but Alicia had said that it would be better if she got a little more experience before putting in for a transfer. According to Alicia, she had recommended against Ginny's promotion because her performance had dropped significantly after she hurt her back and Alicia doubted that Ginny could perform the job because of her back injury. After all, the manager's position would require Ginny to supervise five salespeople, and she would have to accompany each salesperson on several sales calls per month, requiring her to spend significant time in the car. Alicia didn't think Ginny's back would allow her to do that. In addition about four months ago Page 2 of 4 2156 words LE Focus salesperson on several sales calls per month, requiring her to spend significant time in the car. Alicia didn't think Ginny's back would allow her to do that. In addition, about four months ago she had started receiving complaints from customers that Ginny was not visiting them as often as she should, and some customers had reported that when Ginny did visit, she seemed distracted and vague. Alicia told Gail she believed Ginny was self-medicating with sample Sunabi muscle-relaxant pills, which require a doctor's prescription, in order to relieve her back pain. Although Alicia can't prove it because Sunabi has not yet conducted its annual inventory of its drug samples, she strongly suspects it because of the customer complaints and because Ginny seems to resupply her stock of samples more frequently than her customer visits would normally warrant. Alicia estimates Ginny has probably taken about $250 worth of Sunabi pills over the past few months. When Gail asked Alicia whether she had told Ginny that customers wanted older salespeople, Alicia admitted that she might have said something about customers wanting Sunabi representatives to be easy to talk to and tended to like to see some gray hair because it indicated a certain level of experience and maturity. "I said it because it's true," Alicia told Gail. When Gail asked whether Alicia had told Ginny that her performance was unsatisfactory or had confronted her about her suspicions that she was using Sunabi samples, Alicia said Ginny had been below quota for the last few months, but admitted that she had not formally told Ginny that her performance was unsatisfactory. Alicia said she had periodically asked Ginny how her back was doing and when she thought she'd be able to get back to her regular schedule, which Alicia thought was a clear indication to Ginny that it was time she got back to work. Alicia had not directly confronted Ginny about her suspicions about her use of Sunabi pills nor had she reported her suspicions to anyone at Sunabi because she was reluctant to accuse Ginny without direct proof. In response to Gail's question about why Alicia had not accompanied Ginny on any sales calls for the last two months, Alicia became defensive. She said Ginny's schedule had become so unpredictable that it was impossible to plan her schedule around her. She also admitted el n .N that she did not enjoy spending the day with Ginny because all she ever did was complain about her back. She told Gail Ginny was a problem employee and it would be best for everyone if Sunabi found a way to get rid of her. Almost as an afterthought, Gail then asked Alicia whether she had ever had any training on how to be a manager. Alicia said she had not, although she had on occasion requested that Sunabi provide such training. w Joan's Story Gail thought that in order to round out the picture of Ginny's experience at Sunabi, she had better talk to Joan about what Ginny had been told when she was hired. At that time Gail was not yet the director of human resources and had not been involved in any way in Ginny's hiring. Joan did not remember any specific conversations with Ginny but checked her notes and told Gail the following. Joan had interviewed Ginny first at a career fair at her college, and then again when she visited Sunabi's regional office for a follow-up interview. She had seemed concerned about her salary, and Joan had told her it was common to receive raises at regular intervals assuming adequate performance. According to Joan's notes, Ginny had also been concerned about being a salesperson because she really wanted to be in management. Joan's notes indicated she had told her it was Sunabi's policy to start new hires in sales but that high-achieving salespeople who wanted to move into management could expect to do so quickly. Finally, Ginny had asked about the ages of Sunabi's managers, and Joan had said the average age was about 40 but had also told her that Sunabi was making a concerted effort to hire and promote more younger people. I Joan went on to remind Gail that at the time Ginny was recruited, Sunabi was concerned about being sued for age discrimination against young job applicants. Joan was therefore under intense pressure from Sunabi to interview and hire young salespeople. Joan, who was 52 at the time she interviewed Ginny, was worried that if she did not recruit enough young employees, she might lose her job to a younger person who would be more successful connecting with young applicants. Therefore, Joan admitted to Gail, she might have been somewhat more optimistic in her responses to Ginny's questions than she should have been but she never intended to tell Ginny anything that wasn't potentially true. Page 4 of 4 2156 words Focus apel oor nern Test, N proc 1165 Based on her interviews with Alicia and Joan, as well as on Ginny's phone call, Gail realized Sunabi may have more than a few management problems. She also was worried that Ginny might actually have some grounds for her threatened lawsuit but did not know how strong her legal claims might be. In response to her request for a summary of the law, Sunabi's lawyer wrote the following memorandum for her. SUNABI LAW MEMO Ginny Sherman's case raises many potential legal issues, the most immediate of which are disability discrimination, age discrimination, sex discrimination, misrepresentation, theft of controlled drugs, Sunabi's legal responsibility for keeping track of its drug samples, and Sunabi's vicarious liability for any accidents caused by Ginny while driving under the influence of the pills. The following memo describes the legal standards associated with each issue. 1. Disability Discrimination The federal Americans with Disabilities Act ("ADA") prohibits employers from discriminating against anyone with a disability in hiring, firing, promotion, compensation and training decisions. According to the ADA, an individual with a disability is a person who: has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. In order to win an ADA case, Ginny must first establish a prima facie case by showing that she has a disability, she is a "qualified individual" under the ADA, and Sunabi discriminated against the employee because of the disability. Ginny must first prove she has a disability. The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of a person's major life activities. Thus, Ginny must show 1) she has a physical impairment, 2) she is impaired in one or more major life activities, and 3) her physical impairment substantially limits one or more major life activities. A back injury is a physical impairment. An addiction to the illegal use of drugs is not a disability under the ADA, but individuals who are not illegally using drugs, but who are erroneously perceived as being addicts and as currently using drugs illegally, are protected by the ADA (EEOC, perceived as being addicts and as currently using drugs illegally, are protected by the ADA (EEOC, 1992). Major life activities include sitting, standing and lifting. An impairment "is substantially limiting if it significantly restricts the duration, manner or condition under which an individual can perform a particular major life activity as compared to the average person in the general population's ability to perform that same major life activity." Factors to consider in determining whether a person is substantially limited in an activity include "( the nature and severity of the impairment, (ii) the duration or expected duration of the impairment, and (iii) the permanent or long term impact... resulting from the impairment." To be a "qualified individual" under the ADA, Ginny must be qualified for the position she seeks and must be able to perform the essential functions of the job with or without reasonable accommodation. The essential functions of a job "are those functions that the individual who holds the position must be able to perform unaided or with the assistance of a reasonable accommodation." An accommodation is "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." A reasonable accommodation can include a variety of actions, including providing necessary equipment or restructuring a job. Job restructuring means that an employer may reallocate the nonessential, marginal duties of a job, or may change when and how the essential functions are to be performed so that a disabled employee can perform the job. n N An employer is not required to reallocate essential job functions, nor must an employer make an accommodation that constitutes an undue hardship. "Undue hardship" means "any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business." Because employers are not required to accommodate disabilities of which they are unaware, It is normally the responsibility of a disabled employee to request a reasonable accommodation from her or her employer. If Ginny can prove her initial case, Sunabi can then defend by showing it had a legitimate, nondiscriminatory reason for failing to promote Ginny. The burden then shifts back to Ginny to show Sunabi's proffered reason for its action was merely a pretext and the true reason was discriminatory. An employer may be liable for disability discrimination under the ADA even if the employer had a legitimate reason for taking the adverse job action if the employer was also motivated by a discriminatory purpose (so-called "mixed-motive" case). Should Ginny win her ADA case, she would be entitled to reinstatement with or without back pay or any other damages the court may deem appropriate, including compensatory and punitive damages and attorney's fees, litigation expenses and costs. If Sunabi successfully demonstrates that the outcome would have been the same even without the discriminatory intent, Ginny may not recover monetary damages but may receive attorney's fees and costs demonstrated to be directly attributable to pursuing her claim. 2. Age Discrimination The federal Age Discrimination in Employment Act prohibits discrimination only against workers who are 40 years old and older. Because Ginny is only 24 she is not protected by federal law. The law of many states, however, including the state law that is applicable to sunabi, protects workers of all ages from age discrimination. In order to win an age discrimination cate under state law, Ginny must show she was qualified for the job and an adverse job action was taken against her because of her age. Sunabi must show it had a legitimate, nondiscriminatory reason for its action, such as failure adequately to perform the job. The burden of proof then shifts back to Ginny to show Sunabils proffered reasons for its action are merely a pretext for a discriminatory action. If Ginny were to win her state age discrimination suit the court could award Ginny damages to compensate her for the harm done, plus her attorney's fees. 3. Sex Discrimination Federal law protects employees from being discriminated against based on sex. In order to win a sex discrimination case, Ginny mist show she was qualified for the job and an adverse action was taken against her because of her sex Sunabi must show it had a legitimate, nondiscriminatory Page 2 of 4 1838 words OlFocus 116% UN CONCIME VUOI SAU Ormu TUNTUU worry reason for its action, such as failure adequately to perform the job. The burden of proof then shifts back to Ginny to show Sunabi's proffered reasons for its action are merely a pretext for a discriminatory action. If Ginny were to win her state age discrimination suit, the court could award Ginny damages to compensate her for the harm done, plus her attorney's fees. 4. Misrepresentation 2 Ginny may claim that Joan, when she interviewed her, engaged in fraudulent or negligent misrepresentation. In order to win a fraudulent misrepresentation claim, Ginny would have to prove that Joan misrepresented a material fact, that she intended to deceive Ginny, that Ginny reasonably relied on Joan's misrepresentation when she decided to accept the job at Sunabi and that Ginny suffered harm as a result of her reliance on Joan's misrepresentation. A fact is "material" ifa reasonable person would deem the fact important in making a decision, or if the person who makes the misrepresentation has reason to know the fact is important to the decision-maker. Negligent misrepresentation consists of the same elements except that it is not necessary to prove that Joan intended to mislead Ginny; she may have done so innocently, believing her statements to be true. If Ginny were to win a fraudulent or negligent misrepresentation claim, she could recover from Sunabi compensatory and consequential damages for the harm she has suffered as a result of the misrepresentation. N 5. Theft of Drug Samples If Ginny has in fact been using Sunabi sample pills, she might have committed the crime of theft. A person commits theft if she knowingly takes property belonging to another with the purpose of depriving the rightful owner of the property. If the value of the property taken is not more than $1,000 the penalty is a fine of up to $1,000 and/or up to six months in jail. If the value is over $1,000, the penalty is a fine up to $50,000 and/or 10 years in prison. Moreover, Ginny may have violated both state and federal regulations governing the possession of controlled drugs. If Ginny is using Sunabi drug samples without a prescription, she may be guilty under state law of criminal possession of drugs or fraudulently obtaining drugs, both of which offenses carry a penalty of up to five years and/or a fine of up to $50,000. Federal law provides for a penalty of up to ten years and/or a fine of no more than $250,000 for knowingly selling, purchasing or trading a controlled drug. 6. Sunabi's Control of Drug Samples Sunabi is required by federal law to conduct at least an annual comprehensive inventory of all drug samples in the possession of its salesmen. If this inventory reveals any significant loss of samples, including theft, Sunabi must investigate the loss and report such loss to the Food and Drug Administration If Ginny is convicted of selling, purchasing or trading drug samples in violation of federal law, Sunabi could be assessed a penalty of no more than $50,000 assuming this is only the first or second such incident. Subsequent incidents expose Sunabito a penalty of up to $1,000,000 for each violation Sunabi can avoid a fine if it presses charges against Ginny itself or if Sunabi diligently implements an audit system designed to detect violations such as Ginny's. 7. Vicarious Liability If Ginny were to cause an accident by driving under the influence of Sunabi pills, or in any other way harm someone while under the influence, Sunabi could be held liable for the harm done under several theories. First, if Ginny was within the scope of her employment when the accident occurred, Sunabi could be liable under the doctrine of respondeat superior. An employee's action is considered within Page 3 of 4 1838 words EX Focus + 116% w the scope of employment if it was incidental to conduct authorized by the employer, especially if the conduct was done in furtherance of the employer's business. Thus, for example, if Ginny were driving to visit a Sunabi customer and caused an accident, she would most likely be considered to be within the scope of employment and Sunabi could be held liable for the damage done. Second, Sunabi could be found negligent itself for retaining an unfit employee or failing adequately to supervise its employee. Sunabi could thus be liable if it knew or should have known that Ginny presented an unreasonable risk of harm to third parties and Sunabi failed to take adequate precautions. The dollar amount of the employer's potential liability depends on the facts of the case, but generally will be calculated to compensate the victim for the harm done, including medical expenses and pain and suffering. t I I pei Dor 1 er n est, N