Employment Law Daily Alleged coworker racism was unrelated to employee’s firing for milking her medical leave
Monday, April 11, 2016

Alleged coworker racism was unrelated to employee’s firing for milking her medical leave

By Joy P. Waltemath, J.D. No evidence supported an employee’s claim that discrimination motivated her employer’s decision to fire her after it obtained surveillance evidence and a physician’s opinion that she improperly extended her medical leave following a work-related concussion. Video revealed she was driving and running errands while claiming to be incapable of “normal activity including minimal exertion,” and although she had reported incidents of coworker threats, harassment, and racist activities, there was nothing suggesting they were at all related to the investigation of and her termination for “unbecoming conduct” (Chaib v. The GEO Group, Inc., April 6, 2016, Peterson, R.). Work-related concussion. Within months of her hire by a private company that managed a state correctional facility, the employee filed multiple complaints of racism and harassment with HR and with her supervisor, accusing various coworkers of making racist comments and insulting and mistreating her. She later suffered a work-related concussion when a remotely operated metal gate struck her in the forehead. In the weeks following the initial injury, the employee saw a physician at least four more times, complaining of various symptoms and that she felt no improvement, and after assessing her each time, he extended her physical restrictions and her time off work. Malingering. Suspicious, her employer had its workers’ comp administrator conduct surveillance, which revealed her driving a car and running errands. Surveillance videos were sent to a neurologist she was scheduled to visit and based on the videos and the exam, the neurologist believed the employee was not impaired but likely malingering. That information was forwarded to HR and her supervisor. When she returned from leave after six weeks, she was confronted, placed on administrative leave, and ultimately fired. Her Title VII suit alleging discrimination and retaliation, including a state law claim for workers’ comp retaliation, was defeated on summary judgment. Because the employee abandoned her retaliation claims on appeal by not addressing them, the Seventh Circuit looked only at whether she had evidence that her employer discriminated against her on any basis and concluded she did not, so it affirmed summary judgment for her employer as a matter of law. Direct method. Under the direct method, the employee relied on the reported incidents in which she accused coworkers of making racist comments to her and harassing her, in particular one lieutenant’s actions, and the posting of a racially offensive comment on her work computer. Although the court called the incidents “disturbing” (but did not otherwise describe them), it found they were unrelated to the events and investigation that led to her employer’s decision to fire her. There was no evidence, for example, that the lieutenant participated in the firing decision. Without some connection, which she had not shown, no reasonable jury could infer that she was fired for discriminatory reasons. Indirect method. Nor could the employee make a prima facie case of discrimination under the indirect method. She could not show that she was meeting her employer’s legitimate job expectations “because her undisputed conduct was inconsistent with her statements about the extent of her post-injury impairments,” which her employer characterized as “unbecoming conduct” under its employee conduct standards. She tried but failed to identify any other employees who were fairly comparable and were treated more favorably than she was. No pretext in any event. Yet even if she had a prima facie case, she could not show that her firing for undisputed conduct was a pretext for unlawful discrimination. The employee provided no evidence suggesting that her employer did not honestly believe she had exaggerated her impairment following the concussion and had taken advantage of her workers' compensation claim or that it fired her for any other reason. She did not dispute that she had been driving and running errands at the same time she claimed to be incapable of “normal activity including minimal exertion,” nor did she dispute that the neurologist who examined her told her employer that she was malingering. She argued only that the lower court overlooked the significance of her previous complaints of racism in the workplace. But since the coworkers involved in those incidents had nothing to do with the investigation of suspected malingering or the decision to fire her, the court affirmed summary judgment.

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