Employment Law Daily Prior supervisor’s year-old positive review didn’t suggest employee’s disciplinary firing was pretextual
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Monday, August 13, 2018

Prior supervisor’s year-old positive review didn’t suggest employee’s disciplinary firing was pretextual

By Marjorie Johnson, J.D.

Fired following his purported violation of patient confidentiality rules, which was a hospital employee’s fourth and last allowable offense under its progressive discipline policy, the employee failed to revive his disability bias claim asserting that two new supervisors harbored animus against him due to his attention deficit disorder (ADD) and other disabilities. The Eighth Circuit affirming dismissal of his ADA clams on summary judgment, finding no pretext since the two “more leniently treated” coworkers he identified were not similarly situated, and the positive performance reviews from his previous supervisor didn’t infer a discriminatory motive (Lindeman v. Saint Luke’s Hospital of Kansas City, August 9, 2018, Shepherd, B.).

Prior supervisor less demanding. The employee—who suffered from obsessive compulsive disorder, attention deficit disorder, bipolar disorder, and other physical limitations—began working for the hospital in 2006. He worked without issue until he began reporting to two new supervisors in 2013, who he claimed were much more demanding and less pleasant than his prior supervisor. They also allegedly made derogatory statements to him, such as “I better see the whites of your eyes or else” and “I’ll match your ADD with my ADD and I will win.”

Progressive discipline policy. Under the hospital’s progressive discipline system, employees receive a verbal warning for their first infraction, a written warning for a second infraction, a suspension or second written warning for a third infraction, and termination for any subsequent infraction. The hospital also had clear rules prohibiting the dissemination of confidential patient information, including patient names. The employee received copies of these policies when he was hired, and the hospital also conducted additional training sessions on patient confidentiality.

Warnings led to discharge. On January 1, 2014, the employee received a verbal warning after he became argumentative when receiving coaching for failing to respond to a supervisor’s phone calls. Later that month, he received a written warning for repeatedly failing to abide by the hospital’s timecard and call-in procedures. In late February, he was temporarily suspended after failing to call in before missing a scheduled shift. In April, he violated the confidentiality policy by mentioning a patient’s name to several individuals inside and outside of the hospital. He was discharged following this fourth infraction under the progressive discipline policy.

No pretext. For purposes of summary judgment and on appeal, the parties assumed that he could establish a prima facie case. At issue was whether he demonstrated that the hospital’s proffered reason for terminating him—disclosure of confidential information in violation of hospital policies—was pretextual. The Eighth Circuit agreed with the district court’s determination that his attempts to cast doubt on the hospital’s explanation failed.

Coworkers not similarly disciplined. Though the employee argued that two other coworkers also disclosed the name of the patient and received no discipline, he failed to show that they were similarly situated to him in all relevant respects. In particular, they were not shown to have had comparable disciplinary histories or that they dealt with the same supervisor, had been subject to the same standards, and had engaged in the same conduct “without any mitigating or distinguishing circumstances.”

Fatally, he also pointed to no evidence that the coworkers were also at the last stage of the hospital’s progressive disciplinary policy and consequently subject to termination for an additional violation. He admittedly mentioned the patient’s name after being expressly told that doing so was a violation of hospital policies. There was no evidence that the coworkers engaged in a similar course of conduct.

Prior positive reviews not probative. The Eighth Circuit also rejected the employee’s assertion that his history of positive performance reviews by his prior supervisor, followed by his quick progression through the disciplinary policy, suggested an illicit motive. Claiming that the two new supervisors intentionally began disciplining him due to his disabilities, he relied on a Tenth Circuit case to argue that “evidence of consistent, long-term good performance, followed closely by a series of adverse disciplinary actions is evidence of pretext.”

Shifting expectations. There were several flaws in his argument. First, in the Eighth Circuit, evidence of a strong employment history “will not alone create a genuine issue of fact regarding pretext and discrimination.” Second, the Tenth Circuit case was clearly distinguishable as it involved a plaintiff whose performance reviews were made by the same supervisor. A single supervisor changing his rating of an employee after a protected activity, without sufficient explanation, suggested a discriminatory motive.

In contrast, because this case involved different supervisors, any potential inference of bias was weakened substantially by another rational explanation for the change: the shifting expectations of different supervisors. Moreover, the favorable review that he relied upon was made nearly one year prior to his violation of the confidentiality rules, making it irrelevant to whether he was terminated for the given reason.

The Eighth Circuit also rejected his assertion that he did not actually violate the confidentiality rules because the patient had waived confidentiality by announcing her hospitalization via social media. At best, this only showed that the hospital’s belief was mistaken, not that it did not honestly believe that he had violated its confidentiality rules. Accordingly, because he failed to show that the hospital’s reason for his termination was pretextual, summary judgment against him on his ADA disability bias claim was affirmed.

Failed to exhaust accommodation claim. Because the employee also conceded that his EEOC charge did not include any allegation about needing or requesting an accommodation, he failed to exhaust his administrative remedies on that claim.

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