Labor & Employment Law Daily Evidentiary challenges by healthcare employees fired while pregnant or on FMLA leave all fail
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Wednesday, September 2, 2020

Evidentiary challenges by healthcare employees fired while pregnant or on FMLA leave all fail

By Kathleen Kapusta, J.D.

In affirming the decision of the court below, the appeals court found it did not abuse its discretion as to any of the challenged rulings.

In a case brought by three former employees alleging they were terminated because they were pregnant and/or on FMLA leave, the Fifth Circuit, affirming the decision of the court below, found that although the district court was less than clear as to whether it based certain evidentiary rulings on the work-product doctrine or attorney-client privilege, any error was harmless. Nor did the court err in admitting testimony regarding specific incidents attacking a witness’ credibility or by failing to offer the jury a motivating-factor instruction on the employees’ Title VII discrimination and FMLA retaliation claims (Adams v. Memorial Hermann, August 31, 2020, Smith, J.).

Clinic closure. The employees worked at one of Memorial Hermann Health System’s neighborhood clinics, one as a nurse practitioner, and the other two as medical assistants. When Memorial Hermann made the decision to close the clinic in 2014, seven individuals worked there. At the time the decision was made, two of the three employees were out on FMLA leave after having given birth and the third was pregnant and preparing to take FMLA leave. All seven clinic employees were terminated,

Terminations. The clinic employees were all informed that there were other available positions for which they could apply. None of the three employees was selected for a new position, however. Several months later, the HR representative, who was part of the group that had notified clinic employees of the terminations, was fired when it was discovered she had falsified information on her resume.

Lawsuit. Suing under Title VII and the FMLA, the employees alleged they were terminated because of their pregnancies and in retaliation for taking FMLA leave. At trial, Memorial Hermann relied on, among other things, the employees’ performance evaluations to show the termination decisions were based on legitimate factors. To rebut the reliability of the performance evaluations, the employees called the HR rep as a witness. They sought to introduce testimony that the rep was instructed by Memorial Hermann’s lawyers to search for the employees’ performance evaluations and that, after engaging in the search, she was unable to find them.

Trial testimony. At trial, the court ruled that the HR rep could not “testify as to conversations she had with lawyers or things she did at the direction of the lawyers” as the testimony was protected under either the work-product doctrine or the attorney-client privilege. For its part, Memorial Hermann sought to introduce its former HR director’s testimony regarding the HR rep’s employment. Although the trial court permitted the testimony, it limited the scope to questioning that would either contradict unanticipated testimony by the HR rep or impeach her for bias against her former employer. The court also permitted the HR director to testify that the HR rep was fired because she lied on her resume and application and also allowed her to testify as to the details of that fabrication.

After the court instructed the jury under a but-for standard of causation for both the Title VII and FMLA claims, the jury found for Memorial Hermann on all claims.

Less than clear. On appeal, the employees first argued that the lower court erred when it limited the HR rep’s testimony under either the work-product doctrine or attorney client privilege. Noting that the district court, in its initial order, stated that “any testimony concerning [the HR rep’s] conversation with Defendants’ lawyers will not be permitted at trial,” the appeals court observed that this seemed to invoke attorney-client privilege. At trial, however, the court’s statement that the HR rep could not “testify as to conversations she had with lawyers or things she did at the direction of the lawyers” seemed to invoke both the attorney-client privilege and the work-product doctrine.

Although it was less than clear, the appeals court found it did not need to “discern the particular doctrine on which the court rested its conclusion (nor whether that conclusion was correct)” as any error was harmless. The employees sought, through the HR rep’s testimony, to show that the performance evaluations were shams and the HR rep was allowed ample testimony on that theory, the court explained. Not only did the jury have the opportunity to adopt the employees’ theory, the evaluations were only one piece of evidence bearing on the overall legitimacy of the employment decisions. Further, the jury had sufficient evidence to find those decisions were legitimate. Thus, the district court did not commit reversible error when it limited the HR rep’s testimony under either the work-product doctrine or attorney-client privilege.

HR director’s testimony. Next, the employees argued that the district court erred by permitting the HR director to testify regarding the HR rep’s falsified resume. That falsification resulted in her termination, which served as Memorial Hermann’s foundation for the rep’s alleged bias. However, said the appeals court, it “was squarely within the court’s broad discretion to permit the jury to hear the details and context surrounding an occurrence properly introduced as extrinsic evidence to show a witness’s bias.” Accordingly, the court did not abuse its discretion.

Jury instructions. Finally, the employees contended that the district court erred by failing to offer the jury a motivating-factor instruction on the Title VII discrimination and FMLA retaliation claims. While the FMLA does not specify a standard of causation for retaliation claims, the Department of Labor has interpreted that provision to provide for both a but-for causation standard and a mixed-motive standard, the court observed, and Title VII plainly provides for both a but-for causation standard and a mixed-motive standard. Moreover, both sides agreed that when both alternatives are available, the district court must discern the correct standard.

And here, the district court stated that it “did not have before it substantial evidence supporting a conclusion that both a legitimate and an illegitimate (i.e., more than one) motive may have played a role in the challenged employment action.” In the context of the FMLA claim, the court found the employees were terminated either in retaliation for taking FMLA leave or because the clinic closed, and they failed to find employment elsewhere within the employer’s system. Similarly, for the Title VII claim, the court determined that the employees “were terminated either because they had been pregnant or because their clinic closed and they did not secure employment elsewhere.” The lower court therefore asked “whether [this] particular case involve[d] mixed motives,” and answered that it did not. In so doing, the appeals court stated, it did not abuse its discretion.

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