Banks v. McGynn, Hays & Co., Inc.

Background

Edward Banks sued McGlynn, Hays & Co., Inc., and several of its agents and employees after the company terminated his employment. Banks alleged that he was subjected to repeated racial slurs and other insults while working as a welder. He also alleged that he complained about the treatment and that the defendants responded negatively.

Banks injured his back in a June 2017 car accident. He alleged that he visited an emergency room, received medical notes excusing him from work for two days, later missed additional single days based on notes from a hospital and an urgent care center, left work early because of pain, and missed work for an independent medical examination. The defendants said that excessive absences were part of the reason they terminated him in late January or early February 2018. Banks alleged that White employees who missed similar or greater amounts of work were not disciplined.

Banks asserted discrimination and retaliation claims under the Family and Medical Leave Act, Section 1981, state law, and city law. The defendants moved to dismiss all claims. They argued that Banks had not alleged a qualifying serious health condition under the Family and Medical Leave Act, that the Act’s time limit barred his claims, and that his Section 1981 claims duplicated claims in an earlier related proceeding.

FMLA Claims

The Family and Medical Leave Act protects eligible workers who experience a “serious health condition.” The court explained that, under the relevant regulations, the condition could qualify through inpatient care, more than three consecutive days of incapacity combined with additional requirements, or a chronic condition requiring periodic medical visits.

The court concluded that Banks had not alleged inpatient care, incapacity lasting more than three consecutive days, or periodic treatment for his back injury. The court therefore dismissed his Family and Medical Leave Act claims without addressing the defendants’ time-limit argument. The opinion does not add a “with prejudice” or “without prejudice” designation to this dismissal.

Section 1981, State, and City Claims

The defendants argued that Banks’s Section 1981 discrimination and retaliation claims were duplicative of claims in an earlier related proceeding involving the same parties. Banks relied on essentially the same facts in both cases but also alleged here that the defendants treated non-Black employees more favorably when they missed comparable or greater amounts of work. Banks said he learned during discovery in the earlier proceeding that the defendants claimed his absences contributed to his termination.

The court denied the defendants’ motion to dismiss the Section 1981 claims and the parallel state- and city-law claims, contingent on Banks filing a motion to consolidate this case with the earlier related proceeding. The defendants did not challenge the merits of the Section 1981 claims based on the additional allegations of unequal treatment.

Disposition

Judge J. Paul Oetken ordered that the defendants’ motion to dismiss the case was granted in part and denied in part. The Family and Medical Leave Act claims were dismissed, while the remaining discrimination and retaliation claims under Section 1981, state law, and city law survived. The court directed the clerk to close the defendants’ motion concerning the amended complaint and the earlier motion concerning the initial complaint; the latter was denied as moot. The defendants were ordered to answer the remaining claims within 21 days after the opinion and order.