Labor & Employment Law Daily Employee fired after calling supervisor ‘evil’ can’t revive FMLA claim; accusations of being racist no basis for race bias claim
Monday, July 29, 2019

Employee fired after calling supervisor ‘evil’ can’t revive FMLA claim; accusations of being racist no basis for race bias claim

By Lisa Milam, J.D.

Her FMLA leave was too far in the past to show temporal proximity and there was no other evidence of causation. Also, being accused of being racist is not a basis for a race discrimination claim.

A hospital medical assistant whose performance was unsatisfactory could not show that she was fired in retaliation for taking FMLA leave. Rather, she was discharged months after her return from leave because, after refusing to discuss her performance issues, she told her supervisor to “get away from me” and called her “evil,” the Eighth Circuit held. Nor could she establish a race discrimination claim based on her contention that she was being labeled a racist. The employee, who is white, was angry because she had been questioned about a comment she made that her black coworker “didn’t like working with white people.” The appeals court affirmed summary judgment in favor of the employer, noting that the employee “misunderstands what qualifies as racial discrimination by equating accusations of racist behavior with racist behavior itself.” (Lovelace v. Washington University School of Medicine, July 25, 2019, Smith, L.).

For more than a decade, the employee had worked at the hospital serving various physician teams. Originally assigned to one clinical team at a time, in 2014, under a new supervisor, she was placed on a “floating” team. The adjustment didn’t go well. A few weeks after the assignment change, she experienced back pain at work and went out on FMLA leave for two months. Upon her return, there were numerous complaints about her performance. She refused to do certain assignments, saying she didn’t know how, and one physician team said it was harder to get work done when she was there than when they had no medical assistant at all. She received a negative performance review, which she challenged, and she was allowed to revise her review more favorably. But she was still dissatisfied with her treatment, and complained to the head of business operations as well as to an HR consultant.

Her supervisors discussed her performance with several doctors and nurses. One doctor relayed an incident in which the employee stated that her black coworker didn’t want to work with white people. The supervisors met with the employee to discuss her poor performance and to inquire about the comment about her coworker. When asked, she got angry, denying the comment and accusing the supervisor of labeling her a racist—and thus, in her view, she was the victim of race discrimination. She complained to HR that she was being called racist and also that she was being retaliated against for taking FMLA leave.

At a follow-up meeting, the employee got upset by the criticisms of her performance, said that she couldn’t discuss these matters, asked to go home, and left the meeting. When her supervisor went to her work station to check on her, the employee jumped when she saw her, yelled not to touch her and to get away from her, and called the supervisor “evil.” She was terminated the next day. She sued, alleging retaliation for taking FMLA leave and for her complaints about race and disability discrimination (asserting a violation of the Missouri Human Rights Act).

No causation; no FMLA retaliation. The employee couldn’t establish causation; in fact, the appeals court noted, the timing of her discharge five months after her return from FMLA leave weighed against a finding of temporal proximity. She would need something more to show causation, but she had nothing. She asserted that her supervisors had conspired to fabricate performance problems in order to justify firing her—citing years of positive performance reviews in the past. However, “an employee’s prior satisfactory service does not insulate her from adverse consequences following a later lapse in performance,” the appeals court wrote, and she offered no evidence that the latest complaints about her performance were not genuine.

True or false, the complaints provided a nonretaliatory reason for her supervisors to meet with her about her deficiencies. Yet she admits she was unwilling to discuss her performance with them at the last meeting and asked to be excused. And it was her post-meeting outburst that got her fired. This “intervening unprotected conduct” cut any possible causal cord between her FMLA-protected leave and her discharge.

Being accused of racism isn’t race discrimination. The employee also was unable to establish retaliation based on her complaint of race discrimination, the appeals court said, affirming summary judgment on her reprisal cause of action under the MHRA. She objected to being questioned regarding her comment about her black coworker, saying she’d been labeled a racist. (For the record: she conceded that no one had actually called her a racist.) Essentially, she erroneously equated being accused of racism with racist behavior itself.

“While falsely accusing someone of being a racist is morally wrong,’ such accusations cannot form the basis of an MHRA racial discrimination claim,” the appeals court explained. “Missouri precedents interpreting discrimination on the basis of ‘race’ are confined to evaluating whether an employer’s conduct constituted discrimination of an employee because of the color of [her] skin, as opposed to the substance of the employee’s beliefs (accurate or inaccurate) on issues relating to ‘race,’” the court wrote, citing precedent. At her deposition, though, she admitted that she had never heard any negative comments while on the job about her own race or ethnicity.

Without having asserted that she faced discrimination based on the color of her own skin, the employee had no legitimate basis for asserting she was the victim of race discrimination, and thus no reasonable good-faith belief that she had opposed unlawful discriminatory conduct, or that she faced unlawful retaliation for complaining about such conduct.

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