By Lorene D. Park, J.D. Much like Hollywood executives prefer scripts with a powerful bad guy and a happy ending for an underdog protagonist, media coverage of employment litigation often focuses on “bad” employers. But what happens when there is no “bad guy?” Well, more often than not, the case won’t make it to a jury because the court dismisses the claim as implausible or, after an exchange of information in discovery, the court grants summary judgment for the employer because there isn’t enough evidence to reach a jury. With either outcome, though, the employer still got sued, and still had to spend time and money investigating and defending itself. For example: Employer eases employee back from maternity leave with part-time; still gets sued. In one case, a Missouri employer gave an employee 24 weeks of maternity leave in 2012. When she returned, she was granted her request to temporarily work only Monday through Thursday. In October 2013, she was asked to seek childcare for Fridays because the business needed her to return to full-time. Two months later, when she had failed to find childcare, the employer again postponed her return to full-time—until June 30, 2014. That month, though, she took FMLA leave due to a back injury, then extending her leave to the date she had previously planned a vacation, which went through July 23. When she didn’t show up on July 24 or 25, she was fired for unexcused absences and insubordination (she claimed she planned to take the whole week as vacation). She filed suit alleging retaliation for taking FMLA leave. Though the court found that the employer had a legitimate reason for firing her, and she failed to show that was pretext for retaliation, the employer likely paid a lot to get to that point (Disbrow v. Oticon, Inc.). Employee encourages workplace banter, then complains about it. Evidence that an AutoZone store manager in Massachusetts encouraged sexual banter by joking about his own sexual proclivities eviscerated his claim that he suffered sex discrimination when he was allegedly mocked for his perceived sexual orientation. Furthermore, management took prompt remedial action by conducting an investigation and reprimanding the employees who engaged in the banter. His claims therefore failed as a matter of law (Tinory v. AutoZoners, LLC). Employees refuse to accept a “reasonable” accommodation. In another case, a federal court in New York granted summary judgment for an employer that accommodated an employee’s metal hip and related limitations by offering an ergonomic chair, excusing tardiness, and permitting her to attend a medical appointment if she returned to work before the end of her shift (she wanted the rest of the day off). Noting that the ADA does not require an employer to grant the specific accommodation that a disabled employee desires, the court found no support for the employee’s failure-to-accommodate claim (Ward v. Concentrix Corp.). Similarly, an employer sufficiently tried to accommodate an employee who cared for children with mental health problems and who also had seizures during which he blacked out. It relieved him of his driving duties and provided a flexible work schedule. However, there was no way it could guarantee, without undue burden, that he would never be left alone with residents (who would then be unsupervised should he have another seizure). The employee also failed to present evidence that there were vacant positions to which he could have been reassigned (the employer offered an open maintenance position but he declined). His ADA claim failed on summary judgment (Craddock v. Little Flower Children & Family Services of New York). Zero-tolerance policies mean “zero” tolerance but employees claim otherwise. In a case out of Mississippi, a chef tripped in the kitchen and fractured her ankle. The clinic that took her x-ray also tested her blood and urine under the employer’s substance abuse policy and concluded that her blood alcohol content was above the employer’s cutoff and above the state’s legal limit. After she was fired under the employer’s zero-tolerance policy, she sued for discrimination under the ADA. Granting summary judgment for the employer, the court found that her fracture was not a “disability” under the Act and she failed to show that her termination under the policy was pretext for discrimination (Clark v. Boyd Tunica, Inc. dba Sam’s Town Hall and Gambling Hall). In a case out of Tennessee, an employee who was fired after violating a zero-tolerance policy by repeatedly using the n-word—even in a meeting with an HR rep who asked her to stop—was not entitled to a new trial on her claim that she was actually fired in retaliation for reporting sexual harassment (the jury also found that the manager she accused of staring at her breasts was merely checking for a hidden cell phone—which she was known to hide against company policy). Note that this case made it all the way to trial, and the employer was denied its request for attorneys’ fees incurred in defending itself (Blackmon v. Eaton Corp.). Employees clearly fired for poor performance or misconduct may sue anyway. Courts often explain that engaging in protected activity does not insulate an employee from being subject to termination or another adverse employment action for poor performance, policy violations, or other legitimate reasons. The same holds true for membership in a protected class. In the following cases, it was clear to the court that an employee was fired for a legitimate reason, but as in the cases above, the employees sued anyway, and the employers spent time and money answering the complaint, exchanging discovery, and filing (also arguing) a motion for summary judgment. Because there are so many of these cases, a brief sampling will have to suffice:
- A Florida supervisor who posted Facebook pictures of his vacation fun at Busch Gardens and in St. Martin—while on medical leave—was fired, not in retaliation for his FMLA leave, but for poor judgment and social media policy violations (Jones v. Gulf Coast Health Care of Delaware LLC dba Accentia Health and Rehabilitation Center of Tampa Bay).
- Fired for misusing a company fuel card for personal use, an operations manager could not show that a younger subordinate (who did the same thing but was not fired because he was less likely to understand company policies) was similarly situated, so the manager’s ADEA age discrimination claim failed (Carfagno v. SCP Distributors, LLC dba Pool Corp.).
- An Alabama nurse assigned to ride on a special needs bus was fired after she was captured on videotape turning her head at a student’s suggestion so the student could hit another child in the face; she was not fired because of age discrimination. The younger bus driver who was not fired was not as culpable because the driver wasn’t tasked with watching over students while driving (Bailey v. Baldwin County Board of Education).
- Caught sleeping on the job, an Arizona employee could not show that he was fired due to disability discrimination because he did not inform his manager that the sleeping incident was a medical episode, and there was no evidence that the manager knew of his disability or that disability was the real reason for the termination (Paolino v. U.S. Airways).
- A university bursar in Pennsylvania who did not tell her employer she was pregnant (and was not yet showing) was fired not due to pregnancy discrimination but for poor performance because her email responses to student questions were hard to understand, inaccurate, and often used “texting” or instant messaging abbreviations for words that should have been spelled out (Laverty v. Drexel University).
- Though a radio station employee signed a conflict of interest policy stating that the company was “entitled to its employees’ undivided loyalty” and that a conflict of interest might arise from an employee’s financial interest in a competitor, from using the company’s name to further an employee’s personal interest, or from diverting business opportunities, she recruited a radio personality for a separate TV show she developed, and she was quoted by media as stating that television was the best place to do the show. After she was fired, she sued, but a federal court found “no evidence” that the termination over the conflict of interest was pretext for sex discrimination (Vaughn v. Radio One of Indiana, L.P.).
- A mental health agency’s CFO fully investigated an HR director in response to an employee complaint and learned that the HR director failed to conduct legally required criminal background checks on a large number of employees, exempted himself from such checks, and allowed records to falsely reflect the checks were performed. Though the HR director’s claim that he was fired for reasons that violated federal law ultimately failed, the employer had to defend itself all the way through an appeal before the Fifth Circuit, which affirmed summary judgment for the employer (Miller v. Metrocare Services).
- Educate human resources personnel, supervisors, and decisionmakers on best practices and existing policies, emphasizing consistent enforcement.
- Provide effective means for employees to lodge complaints.
- Conduct prompt, thorough, and unbiased investigations of all claims of discrimination or harassment and document your efforts.
- Take appropriate remedial action as necessary (ensure those measures are consistent with existing policy, past practice, and among individuals).
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