Tag Archives: employee termination

Suspicious Timing of Termination Supports Retaliation Claim

Contributed by Debra Mastrian, December 12, 2016

A recent 7th Circuit Court of Appeals decision, Gracia v. Sigmatron, International, Inc., Case No. 15-3311, is a good reminder to employers to be careful in taking adverse action against an employee who recently engaged in statutorily protected activity. In Gracia, a longtime employee, who had complained of sexual harassment by her supervisor and filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), was fired two weeks later for allegedly allowing a subordinate to make a production error on a customer order.  The employee sued her former employer for sex discrimination and retaliation. While Gracia was unsuccessful on her sexual harassment claim, a jury found in her favor on the retaliation claim, awarding $57,000 in compensatory damages and $250,000 in punitive damages.

39454888 - notice of employee termination with glasses and ballpoint pen.Gracia was highly regarded and had received a number of promotions. In her current role as assembly supervisor, she was responsible for production output, quality, and overseeing the work of her team members on the assembly line. Gracia’s male supervisor began sending her sexually graphic photographs through the company’s email system. Gracia did not complain because of her supervisor’s position and his friendship with the company’s president. The supervisor then began writing Gracia up for attendance issues, even though Gracia had not been previously written up for similar problems in the past and, in fact, had been told her attendance was “excellent.” Gracia alleged the supervisor began calling her at home and asking her out. She declined and was suspended a few days later for attendance problems.

Gracia then complained to HR about her supervisor. HR informed the company’s president, who ultimately told Gracia and her supervisor to ‘shake hands’ and get along. Gracia, unhappy with the company’s response, filed a charge with the EEOC. Two weeks later, she was fired after one of her subordinates made a mistake, even though others made similar mistakes and were not terminated. Perhaps of significance to the jury on the punitive damages award was evidence that the company never admonished the supervisor for sending the graphic photographs but rather simply told him to stop using the company’s email for non-business reasons. The company also refused to admit the photographs violated the company’s sexual harassment policy.

On the retaliation claim, the 7th Circuit reiterated the general rule that timing alone is rarely enough to support a retaliation claim; however, if there is other circumstantial evidence, it may raise an inference of retaliatory motive. Here, the suspicious timing of Gracia’s termination, coupled with evidence that others had not been terminated for similar mistakes, supported the retaliation claim.

Employers are reminded that before you take action against an employee who has recently engaged in protected activity (i.e., complained of discrimination, filed a charge), make sure you have, or would have, taken the same action against other employees for doing the same thing. Consult with experienced legal counsel before taking adverse action against a ‘protected’ employee.

Prevent Lawsuits: Implement Good Employment Policies and Gather Evidence Supporting Terminations

Contributed by Noah A. Frank, May 11, 2016

A recent federal appellate court decision underscores the importance of strong employment policies to establish the company’s expectations and potentially save the company from protracted and expensive litigation.

In Tsegay v. Amalgamated Transit Union, 1235, the court found that a union refusing to arbitrate a grievance did not breach its duty of fair representation to a union member terminated for using a mobile device while operating a passenger vehicle. No. 15-6102 (6th Cir. Apr. 27, 2016).

texting while drivingAfter passenger complaints of texting-while-driving, employer Metropolitan Nashville-Davidson County Transit (“MTA”) investigated driver Tsegay’s conduct, including video footage. MTA concluded that Tsegay looked at an electronic device in his lap several times in violation of company policy, and committed other moving violations which could be separate bases for termination. MTA suspended Tsegay without pay, and then terminated him following a meeting with his union representative for misconduct as well as dishonesty.

The union proceeded through the first two stages of the grievance process: filing a written grievance, and an in-person meeting with MTA, the union president, and Tsegay. The union presented the evidence (video, passenger’s letter, and MTA policy regarding cell phones) to its members, who voted not to proceed to arbitration. Instead of appealing this decision, Tsegay sued his union for breach of the duty of fair representation.

Tsegay claimed that the union acted arbitrarily by not going to arbitration. He argued that his cell phone records demonstrated that he was not using his phone while he was driving. However, the appellate court noted that there are many uses of a mobile device that may not appear in cell phone records, such as reading old messages, browsing the internet, and playing games. The appellate court found that the union’s decision to not arbitrate was reasonable because it was based on the union members having viewed the evidence.

This case demonstrates how employment policies and gathering the right evidence help avoid lawsuits.  In this case MTA demonstrated:

  • A written policy prohibiting mobile device use while working and driving;
  • Complaints leading to an investigation, and
  • A proper investigation showing the likelihood of a violation.

Employment policies should be written to convey several messages including, outlining appropriate conduct, company expectations, and safety considerations. The policies should:

  • Communicate clearly to multiple audiences (employees,  managers, others working on behalf of the company, and any reviewing administrative agency or jury) of varying education and language fluency; and
  • Provide a clear understanding of what constitutes appropriate and acceptable conduct.

Enforcing reasonable and effective policies will provide a legitimate, nondiscriminatory basis for discipline, avoid discrimination/retaliation lawsuits, and help employers successfully protest unemployment benefits. Policies should be reviewed by attorneys to ensure legal compliance.

Employer Not Liable under the ADA for Failure to Accommodate Employee’s Disability

Contributed by Debra Mastrian

A recent 7th Circuit case, Hooper v. Proctor Health Care, Inc., Case No. 14-2344 (7th Cir. 2015), serves as a reminder that a plaintiff cannot state a failure to accommodate claim under the Americans with Disabilities Act (“ADA”) if the plaintiff’s physical or mental limitations do not affect the plaintiff’s ability to perform essential job functions.

In Hooper, an employee diagnosed with bi-polar disorder prior to being hired by Proctor, requested time off after an incident that took place outside of work. He disclosed his diagnosis to the Director of Human Resources when he asked for medical leave. During that discussion, the Director of Human Resources mentioned her contentious relationship with her mother-in-law who was bipolar. She reported her conversation with the employee to the Vice President of Human Resources and the employee was put on medical leave.

Paid time offThe next month the employee’s doctor determined that the employee could return to work.  For the safety of its employees, Proctor had an independent medical exam (IME) performed. The IME doctor verbally confirmed that the employee was able to return to work. A written report followed two weeks later, in which the IME doctor stated that the employee could return to work with no restrictions. The IME doctor suggested steps Proctor could take to help alleviate the employee’s stress and improve performance, such as a modified work schedule, sick days and regular performance evaluations. Proctor tried multiple times to contact the employee about returning to work; however, the employee could not be reached.  After two weeks, Proctor sent a letter to the employee telling him he had been cleared to return to work and he would be terminated if he did not return by the end of that week. The employee did not respond or return to work by the deadline, and the employee was terminated.

The employee sued Proctor for disability discrimination and retaliation. Although he alleged general disability discrimination in his complaint, in response to Proctor’s summary judgment motion, the employee claimed Proctor failed to accommodate his disability by not discussing the IME doctor’s suggestions. The 7th Circuit found that the claim failed because the employee could perform his job without regard to his bipolar disorder and he required no accommodations. A failure to accommodate claim under the ADA arises only when an employee requires an accommodation. As a procedural aside, the claim also failed because the employee did not plead sufficient facts to put Proctor on notice that he was making a failure to accommodate claim.

The 7th Circuit also found that the employee could not prove disability discrimination. As discussed in our previous post, the Court continued to question the use of the indirect and direct methods of proof under the McDonnell Douglas framework, and ultimately found that no rational jury could find Proctor discriminated against the employee. Proctor made numerous efforts to contact the employee about returning to work. There was no reason to believe that the termination was related to anything but the employee’s failure to return to work. The remark by the Director of Human Resources about her mother-in-law was not evidence of any bias, but was simply a stray remark with no casual connection to the termination.

Employee States FMLA Claim Despite Never Having Taken Qualifying Leave

Contributed by Suzanne Newcomb

Last week a Federal District Court ruled a disgruntled former employee could proceed with her interference and retaliation claims under the FMLA even though she never actually took any FMLA-qualifying leave. The case serves as a reminder of just how easily an employee triggers the statute’s broad protections.

out of office signThe former employee submitted completed FMLA paperwork relating to a chronic condition and the employer approved her request to take intermittent leave, as needed, in the future. She never actually took leave under the statute and, in fact, she did not even ask for any leave after her employer approved her request for intermittent leave. Yet, when she was terminated some time later, she sued claiming her employer interfered with her FMLA rights and retaliated against her for exercising her FMLA protected rights. Her employer argued it could not have “interfered with” her FMLA rights or retaliated against her for taking FMLA leave, because she had never actually taken or asked to take leave under the statute. The Court disagreed and allowed her claims to proceed.

The FMLA requires employees to provide advance notice of their need for leave whenever possible and therefore, the court reasoned, it is only logical that the statute’s employee protections trigger as soon as the employee takes any action that invokes her rights under the statute. The retaliation claim is even more straight-forward. The plain language of the statute clearly prohibits retaliation against an employee who exercises or attempts to exercise her FMLA rights. An employee is not required to actually take leave in order to activate the statute’s protections.

This and other similar decisions serve as a reminder that an employee exercises her protected FMLA rights, and therefore triggers the statute’s protections, by simply putting her employer on notice of her possible need for a leave that may qualify under the Act. This could be by requesting, completing or submitting FMLA paperwork, but it does not have to be so formalized. In fact, an employee is not required to say “FMLA” or even “medical leave” in order to trigger the FMLA’s protection. Anything that puts the employer on notice that an absence could be FMLA-qualifying or that an employee may need leave for a qualifying reason at some point in the future, could trigger the employer’s FMLA obligations and the notice requirements.

The Risks of Email Communications

Contributed by Carlos Arévalo

Martin Lomasney, an early 20th Century Boston politician, once said “never write if you can speak, never speak if you can nod, never nod if you can wink.” Just last week, the United States Court of Appeals for the Seventh Circuit issued a decision illustrating the dangers of email communications and gave new life to a plaintiff’s claims that the reasons for her termination were the result of discrimination on the basis of her military service and disability.

In 2012, LuzMaria Arroyo, a United States Army Reservist and Veteran, sued her former employer Volvo Group of North America, LLC in federal court for discrimination, retaliation, and failure to provide reasonable accommodations in violation of the Uniform Services Employment and Reemployment Act (“USERRA”) and the Americans with Disabilities Act (“ADA”). In granting summary judgment, the district court found that Arroyo failed to show that her military service was a motivating factor for her termination. To meet the “motivating factor” standard, a direct admission from the employer is not required. Rather, a plaintiff can rely on circumstantial evidence that creates a “convincing mosaic” from which a reasonable jury could infer a discriminatory motive.

17103126_sIn its decision, the Seventh Circuit highlighted emails between members of management where they often complained about the burden placed on Volvo by Arroyo’s frequent use of military leave for training and/or deployments. One email made reference to “the undue hardship [Arroyo’s military leaves] were causing to [Volvo’s] operation.” Other emails questioned the need to extend Arroyo travel time plus the additional eight hour rest period before reporting to work following her military leave. Yet another contained an exchange between supervisors discussing disciplining, suspending or possibly firing Arroyo for her absences, but noting that Volvo likely had no recourse due to Arroyo’s military service. An email recommended that Arroyo be offered a severance package upon her return from deployment, which Arroyo rejected.  When Arroyo later requested accommodations related to her diagnosis of PTSD after her second Iraq tour, a supervisor reported in an email that “[Arroyo was] really becoming a pain with all this.” Her accommodation request was followed by progressive disciplinary steps, which standing alone were minor in nature, but cumulatively led to her termination. Ultimately, the Seventh Circuit noted that a jury could reasonably conclude that Volvo was looking for reasons to discharge Arroyo based on absences from work due to her military service, reversed summary judgment and sent the case back to the district court for trial.

So what can be learned from this decision?  At least one thing is certain:  members of management should heed Lomasney’s advice and not trade emails criticizing employees’ rights pursuant to USERRA, ADA or any other statutory provision.  While Volvo might still succeed at trial – even the Court acknowledged that Volvo granted Arroyo a considerable amount of military leave and did not directly discipline her for those absences – those critical comments will still have an impact and potentially undermine Volvo’s arguments that Arroyo’s military service was not a motivating factor in her termination.