Employment Law Daily ADA, FMLA claims fail because supervisor’s tirades, ‘f-bombs’ were legit reason for termination
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Tuesday, April 19, 2016

ADA, FMLA claims fail because supervisor’s tirades, ‘f-bombs’ were legit reason for termination

By Lorene D. Park, J.D. Evidence that a general manager had previously been counseled about his yelling and “cussing” at subordinates but had not improved, including an audio recording of his tirade during a staff meeting, was a legitimate reason for his termination and he failed to show that his notice of intent to use FMLA leave was a negative factor in the decision, concluded a federal district court in Washington. Also granting summary judgment against his ADA and state law claims, the court explained that he never informed the employer of his hypertension and provided no evidence that it substantially limited a major life activity. Furthermore, he had no privacy interest in a staff meeting so the audio recording did not violate his privacy rights (Holland v. Protection One Alarm Monitoring, Inc., April 13, 2016, Martinez, R.). Plaintiff’s “f-bombs” and volatility reported. The plaintiff, a general manager (GM) at the employer’s Seattle branch, was the subject of multiple complaints by subordinates. In December 2010, the CEO received a letter stating the GM “screams, yells, cusses and makes a person feel 1 inch tall,” creating a “hostile” environment. In February 2011, subordinates complained that he was verbally abusive and, after an investigation, the VP of human resources spoke to him about having inappropriately yelled at an employee for forgetting her key. No other action was taken. In late September 2012, a former employee told the VP that the GM was “volatile and very difficult to work for.” She said employees were scared of him and he “drops f-bombs on a daily basis” and was demeaning. The VP again investigated, substantiated the complaint, and coached the GM on acting appropriately. Again no other corrective action was taken. Indeed, the GM’s March 14, 2013 review rated him as meeting expectations in “Leadership.” ER visit and time off. The GM had hypertension and in April 2013, his conditioned worsened and he went to the emergency room. He was told his condition was exacerbated by work-related stress. He told his supervisor he needed time off to reduce stress based on the recommendation of his doctor. He did not mention hypertension. A week later, he emailed HR requesting paperwork for intermittent leave and was given a packet of information. The GM took the requested time off through May 20, but conceded that did not return the FMLA paperwork until after he was fired. Termination. Meanwhile, on May 14 the employer received complaints about the GM similar to the prior complaints. The human resources VP spoke to employees, who reported many instances of the GM’s unprofessional behavior, including making advances toward a female customer, calling competitors “child molesters” and continuing to yell and swear. On May 27, the VP emailed her findings to a regional VP and to the CEO, who decided the GM should be fired. The email noted that the GM had been counseled on this type of behavior before but was “not making the permanent adjustments he needs to and the employees have lost all respect for him, even his most loyal employees.” The next day, the VP received an email with an audio recording of the GM yelling, using profanity, and referring to employees in an unprofessional manner in a meeting. Based on this, the VP decided he had to be removed immediately to prevent further verbal abuse. The GM received the termination notice on June 4. FMLA claim fails. Granting summary judgment against the FMLA interference claim, the court noted that the GM admitted to the misconduct that formed the basis for his discharge. Also, the GM claimed the timing of his termination was suspicious but the record showed he was fired almost immediately after complaints of his inappropriate behavior and no reasonable jury could find that timing alone suggested his notice of intent to take FMLA leave played a negative factor in his termination. As for the GM’s assertion that the employer used progressive discipline for other managers who did not have health issues, that was irrelevant because the discipline policy was followed here—it allowed the employer the flexibility to directly terminate an employee for egregious behavior or to deviate from the policy at will. ADA and WLAD claims fail as well. Summary judgment was also granted against the GM’s claim that the employer violated the ADA and the Washington Law Against Discrimination by firing him based on his disability or perceived disability; by failing to accommodate him; and by retaliating against him. Although the employee’s physician concluded that his time away from work was medically necessary, there was no indication that his hypertension substantially limited any major life activity or that the employer knew of his hypertension. Indeed, he worked from home the day after his trip to the ER and took a new job the month after his termination. Explaining that the employee failed to meet the disability definition under the ADA or state law, the court also pointed to the employee’s testimony that his condition did not affect his life activities. Moreover, no reasonable jury could find he was terminated because of his alleged disability since no decisionmaker was informed of his hypertension prior to his termination. No privacy violation either. The employee claimed the employer violated his right to privacy under state law, which makes it unlawful to record a “private conversation.” Granting summary judgment on this claim, the court noted that it was based solely on the audio recording of comments he made during a “staff meeting” involving at least four people. Because the meeting involved multiple people and it was undisputed that the employee raised his voice, the court found that this was not a “private conversation” within the meaning of the Washington statute so his claim failed. Moreover, there was no evidence that the recording was made at the behest of the employer so his claim would fail even if the recording had been of a private conversation.

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