By Kathleen Kapusta, J.D. A hotel general manager who transformed a minor incident over a wrongly dispensed water bottle into a tense conversation, and eventually a physical confrontation, failed to show that her termination was in retaliation for seeking workers’ compensation for injuries sustained during the incident, ruled the Sixth Circuit, affirming summary judgment against her retaliation claim. Although she was fired the same day she called the company’s benefits department to obtain a workers’ comp claim number, video footage of the incident validated the company’s version of what happened (Witham v. Intown Suites Louisville Northeast, LLC, March 10, 2016, Sutton, J.). The employee was standing at the front desk when a man entered the lobby to complain about the outside vending machine. When the employee learned that he was not a hotel guest, she told him the machine was for guests only and that he could be ticketed for trespassing. His response apparently upset her and she told him to leave. The situation escalated and two security cameras showed the employee taunting the man, telling him “Come across the counter, cause it’s on camera now, honey.” Come on, I dare you. As the man approached, both began yelling and the employee dared him to join her across the counter. After he knocked her computer monitor to the ground, she left her perch behind the desk, marched to the front door, and blocked him from exiting. During the ensuing physical confrontation, the man slammed her to the floor, kicked her twice, flung the door open, and fled. The employee went to the hospital to obtain treatment for her injuries. Video footage. A day or two later, the company’s general counsel and its chief executive viewed the security footage of the incident, determined that the employee acted unprofessionally, and placed her on administrative leave. A few days later, after the intervening Thanksgiving holiday, the employee called for a workers’ comp claim number, and that same day the executives who placed her on leave fired her. She then sued, asserting retaliation for filing a workers’ comp claim, and the district court granted summary judgment to the hotel. No evidence of pretext. On appeal, the Sixth Circuit found that she could not show her employer’s explanation for discharging her, which was supported by the video, was pretextual. The company fired her, said the hotel’s general counsel, because her behavior in the video was neither “professional [n]or necessary under the circumstances,” and the security footage confirmed her belligerent and unsafe conduct. Further, observed the court, she did all of this in front of another employee whom she was supposed to be training. Because there was nothing to rebut this evidence, the court found it difficult to say retaliation played any role, let alone a substantial and motivating one, in her termination. The employee, however, argued that two of the four executives who decided to fire her knew she sought medical treatment, and the other two were aware of the altercation and thus knew she was eligible for workers’ comp. She also pointed out that they did not fire her immediately upon viewing the video footage but instead made the decision the day she inquired about her workers’ comp claim. Finally, she pointed out that another employee who tackled the man after he left the building was not fired. Claim not considered. These facts, however, did not cast doubt on the employer’s explanation or create a triable fact issue. “That the executives knew” she had a workers’ comp claim “does not mean they discharged her because of that claim, said the court, pointing out that the only relevant testimony in the record came from the general counsel and indicated that they did not consider that claim when they fired her. Nor did the delay in the decision to fire her create an inference of retaliation, said the court, noting the intervening holiday weekend and explaining that companies need not rashly discharge an employee at the first sign of trouble to prove the sincerity of their motives. As to the employee who “tackled” the man, the video footage indicated that the man ran into him or, at best, that he grabbed the man when he came through the door. But even if the employee’s characterization was accurate, the hotel’s decision to fire the employee who escalated the conflict—while sparing the employee who intervened at the last minute—did not suggest that its motives were retaliatory, the court explained. “What our own eyes can see.” Finally, rejecting the employee’s contention that a jury should determine the general counsel’s credibility and that the video footage was subject to “multiple interpretations,” the court observed that “We need not deny what our eyes can see through this visual evidence or cede all ground to the jury by suspending belief in our own eyes. We instead must ‘view the facts in the light depicted by the videotape,’ which is all that the summary judgment standard demands.”
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