Employment Law Daily Was doc’s email ending with ‘have mercy on our souls’ a threat justifying termination for cause?
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Tuesday, September 26, 2017

Was doc’s email ending with ‘have mercy on our souls’ a threat justifying termination for cause?

By Lorene D. Park, J.D.

Finding that it would “stretch the imagination” to conclude that a physician’s “Last Thoughts” email sent two days after receiving 120 days’ notice of his termination without cause was an implicit threat justifying his subsequent termination for cause under a workplace violence policy, a federal district court in Pennsylvania denied summary judgment on his claims of discrimination based on national origin (Syrian) and religion (Muslim). His breach of contract and state wage law claims also advanced, though he failed to establish that he had a disability so his ADA claim failed as a matter of law (Rifai v. CMS Medical Care Corp., September 21, 2017, Schmehl, J.).

The employee, a medical doctor specializing in psychiatry, had a written employment contract to provide medical care at two facilities for a three-year term. He was to earn a base salary and other compensation, to be capped at $400,000. The agreement stated that it would terminate on 120 days’ written notice by either party. It also required the employee to comply with all policies and stated that the employer could terminate for cause immediately if the physician “engages in willful or intentional breach or gross neglect of his duties under this Agreement.”

“Last Thoughts” email. On January 2, 2013, the CEO gave the employee 120 days’ notice of termination without cause. On January 5, the employee sent an email titled “Last Thoughts” to two colleagues, the CEO, and another individual, stating in part: “I asked you and Terry one question in God’ [sic] name; would you let you children sign the contract that Drew Harris gave us ? you both couldn’t answer. This fact and the outpouring of emotions from everyone I met in the hospital in the last 3 days made me realize that we were all prisoners inside Blue Mountain Health System and the warden is torturing everyone and holding everyone hostage to his ego and whimes [sic]. I hold no ills toward you, my and Dr. Abbas’ solace is that we have 118 more days to go. My conern [sic] is for the mentally ill of Carbon County, with the best psychiatrists, nurse practitioners, PA and therapists gotten rid of, who will be there for them? May God bless the employees of Blue Mountain Health System (Sans warden), the people of Carbon County and have mercy on our souls.”

The CEO testified that “at the end of reading that email my life was at stake,” and he felt threatened because it read “[a]lmost like a goodbye letter.” Two other recipients also testified that they found the email threatening. The employer has a zero-tolerance workplace violence policy prohibiting conduct that “creates a reasonable fear of injury to another person.” The CEO decided to terminate the employee immediately under that policy and sent a letter to that effect on January 7. Although the contract provides that termination for cause is effective immediately, the CEO’s letter stated the termination would be effective May 7, 2013. Between January 14 and 23, the employee went to the facility and completed patient medical files.

Lawsuit. The employee sued under the ADA and Title VII, alleging discrimination based on religion, national origin, and disability. He also asserted a claim under the Pennsylvania Wage Payment and Collection Law, as well as a breach of contract claim.

Granting the defendants’ motion for summary judgment in part, the court first dismissed one defendant, which was not a party to the employment contract and was not an employer under a “single employer” theory. Of the elements required to show two entities are a single employer, the employee only alleged common management; the same individual was the CEO for both entities. There was no evidence of functional integration, centralized control of labor relations, or common ownership.

Religion and national origin. On the Title VII claims, the defendants admitted the employee, who is Syrian and Muslim, was a member of protected classes based on his religion and national origin. However, they argued that he failed to make a prima facie showing of circumstances giving rise to an inference of unlawful discrimination and failed to show the reason for his termination (an email violating the workplace violence policy) was pretextual. Denying the motion on these claims, the court found that the employee met his minimal prima facie burden by showing he was replaced by a non-Syrian and non-Muslim.

The employee also raised a triable issue on pretext because, to the court, the text of the email was clearly a “weak” and “implausible” reason for termination, so that a reasonable factfinder could find it unworthy of credence. The email, which stated “I hold no ills toward you,” did not contain an explicit threat and it was a “stretch of the imagination” to consider it an implicit threat. Indeed, one of the recipients admitted he had to read it several times to find the threat.

No disability discrimination. However, the court granted summary judgment against the employee’s ADA claim that he was regarded as mentally impaired and suffered discrimination on that basis. In the court’s view, there was no genuine dispute that the employee’s alleged mental impairment was “minor or transitory” because he was terminated without cause on January 2 and he responded in an email that was perceived as threatening. So the alleged mental issue was clearly induced by a specific, non-recurring event; it was not a disability.

Other claims proceed. Summary judgment was denied on the breach of contract and state wage law claims because, under the contract “cause” for termination did not explicitly include email threats. Moreover, the person who made the termination decision could not identify in deposition which of the enumerated definitions of “cause” he relied on in terminating the employee and there were triable issues on whether the email actually constituted a threat. There was also a question of fact on whether the employer breached the compensation provision because the employee claimed he was not paid for earned and unused paid time off, as well as other benefits.

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