Labor & Employment Law Daily Anti-abortion employees fired after sharing video of patient from neighboring abortion clinic can’t show religious bias
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Tuesday, June 4, 2019

Anti-abortion employees fired after sharing video of patient from neighboring abortion clinic can’t show religious bias

By Brandi O. Brown, J.D.

Two employees failed to identify evidence from which a jury could determine that their employer’s reason for firing them—for breaking several workplace rules—was false or that the real reason was religious discrimination.

Two healthcare workers for an oncology clinic that was located next to an abortion clinic will not get a chance to take their claims of religious discrimination to a jury, ruled a federal district court in Florida. The employees, one of whom recorded and provided a video to a known violent felon, both engaged in anti-abortion activities while on the job, and they did not dispute that they engaged in the conduct that led to their discharge. No jury could conclude that their actions could not have lead a reasonable employer to fire them. The employer’s motion for summary judgment was granted and judgment was entered in its favor (Passmore v. 21st Century Oncology, LLC, May 30, 2019, Howard, M.).

Policies against violence, social media on the job. The plaintiffs worked for a radiation therapy center in a complex partly owned by the physician in their office. Also in that complex was The Florida Women’s Center, which provided gynecological and abortion services. The two businesses shared a common parking area, but the front lot was reserved for patients. The employer’s employees were subject to policies, practices, and procedures outlined in an Employee Handbook.

Handbook policies included rules prohibiting “[n]egligence or any careless action that endangers the life or safety of another person,” “[e]ngaging in criminal conduct or acts of violence, or making threats of violence toward anyone on Company premises or when representing the company,” and “[f]ailing to conduct oneself in a professional manner, including general conduct in the workplace; language; respect for co-workers, patients, and vendors; and general office demeanor.” There were also prohibitions against harassment, workplace violence, and policies governing the use of social media.

Employee counseled. The events that led up to the video appeared to start in 2010, when tensions developed between one of the employees and the physician who ran the abortion clinic. It started with signs the employee placed in her van (one that stated “Stop legalized baby killing” and another related to military veterans) and her habit of parking in front of the offices. The employee was counseled and reminded to park in the back of the building and not to put signs in her van.

A few years later, in 2014, relations between the employee and abortion clinic doctor soured further when she openly encouraged protesters who began showing up nearby. The employee and physician began engaging in a prolonged struggle, with both taking pictures of one another’s actions and calling the police on one another. The vice president of operations for the employer was informed of the on-going tensions and the employee was counseled. She was told to stop engaging in personal activities during work time and to stay clear of the gynecologist.

Video and comments about patients shared. Finally, things came to a head when in September 2014, during work hours, both employees observed a patient being removed from the neighboring abortion clinic on a gurney. One of the employees recorded the event on her phone through the office window where they stood. During the video they commented about the patient and her condition, the physician, the possibility of putting the video online, and the possibility of getting in trouble or losing her job.

In fact, the video was send to someone to post online. Both employees were aware that this action had been taken. The person to whom the video was sent had been convicted and served two years for conspiring to bomb an abortion clinic and the website where it was posted included the physician’s information and location of the clinic. The clinic physician investigated and determined where the video came from, then relayed that information to the employer, including his concerns about the privacy of his patients and safety.

Both employees were fired for violating the employer’s handbook policies, noted above, and filed suit. After a motion to dismiss disposed of most of the employee’s claims and discovery was had, the employer filed a motion for summary judgment on the remaining disparate treatment claim.

No prima facie case. The employer argued that the employees failed to establish a prima facie case of discrimination because they had been unable to establish that a similarly situated employee outside of their protected class was treated more favorably. The two employees to whom they pointed, both of whom had also observed the gurney incident but had not been involved in recording it or otherwise commenting about the patient involved, were not similarly situated. Their conduct was not the same. Neither recorded the incident and neither had been counseled or warned about engaging in personal activities of this sort at work.

No evidence of pretext. More importantly, the two employees failed to show that the employer’s non-discriminatory reason for firing them was pretext for discrimination based on their religious beliefs. They pointed to the vice president’s statement that not everyone had the same belief with regards to statements about abortion, but that statement did not raise a reasonable inference of discrimination on the part of the employer and, moreover, constituted no more than a scintilla of evidence in the employees’ favor. The record demonstrated to the court that the employer’s stated reasons for firing the two employees were reasons that might have motivated a reasonable employer. The employees did not dispute that they engaged in the conduct for which they were terminated or present evidence that the reasons were false. They also failed to identify evidence that the real reason was religious discrimination.

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