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Can you discipline or terminate this employee?

April 25, 2014

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

The following are cases that were decided, or in process of being decided, before a court or agency (federal or state) that either affirmed an employee discipline or termination, or reversed it. In some cases, HR may be the cause of the lawsuit.

What do you think happened in each one of these situations? Answers are provided below.

  1. A pipe welder was terminated immediately after telling his general foreman that he was going to the hospital because “my health is not very good lately.”
  2. When asked why a company decided a long-time employee could no longer perform her cleaning duties, an HR specialist said: “I don’t know why. I think she’s probably older now.” The employee was terminated.
  3. A doctor requests a shift change that the hospital initially agreed to when hired because she suffered fatigue that led to recurring epileptic seizures as a result of being required to regularly work 9-1/2 to 12 hours a day.  She wanted an 8-hour day. The request was denied.  The hospital later terminated her.
  4. On the same day a restaurant server was terminated, a senior benefits specialist sent an email to a third-party provider asking how to exhaust the server’s short-term disability leave, stating “we are wanting to exhaust her STD so that we can terminate her according to the terms of our policy. Help!” In addition, another HR rep told the server that she had returned to work prematurely. When the server came back to work, she was sent home by restaurant management and was never placed back on the schedule.
  5. HR investigated claims of a sales rep that her supervisor was sexually harassing her.  The investigation found that the workers confirmed the supervisor’s obsession with the sales rep’s breasts.  Upon completion of the investigation, HR found that the allegations were unsubstantiated.  The sales rep was then assigned to lesser duties that led to income reduction.

The answers:

  1. The pipe welder: Reversed. Initially, the lower court found that his medical conditions were “transitory” and “suspect” and therefore did not qualify as disabilities under the ADA.  The Appellate Court disagreed.  The Appellate Court ruled that the employee who suffered from high blood pressure and intermittent vision loss stated a claim for relief under the ADA.  (Note also that this may have been a violation of FMLA but that question was not raised.) Gogos v AMS Mech Sys, Inc,   No. 13 C 3779 (7th Circuit Court of Appeals, 12/13/13)
  2. The old cleaning lady: Reversed.  A court found this statement to be direct evidence of the employer’s age bias. Dupont v.   Allina Health System,  No. 12‐2126 (U.S. DC Minnesota, 1/28/14)
  3. The epileptic doctor: Reversed. Per the EEOC, the doctor was hired with the understanding that she would not be required to exceed an eight-hour work day.  The hospital settled for $215,000 after a year of litigation. An EEOC attorney said, “A health care facility should especially understand the importance of non-discrimination regardless of disabilities.” EEOC v. Baptist Health South Florida, et al., No. 13-21411-CIV-KING (SD Florida Miami Division, 2/21/14)
  4. The fired restaurant server: Reversed.  HR’s actions and emails demonstrated a factual case that the server was being retaliated against for trying to take short-term disability, especially since HR was seen trying to exhaust the server’s STD leave in order to terminate her.  Spahic v Gaylord Entertainment Co, NO. 3-12-0862 (U.S. DC, Middle District, Tenn)
  5. The harassed sales rep: Reversed.  Although the company claimed that the accusations were unsubstantiated, HR did counsel the manager.  However, HR failed to ensure that the employee was not treated differently because of the allegations.  The court found that HR’s actions were lacking, not only in the investigation where there was overwhelming evidence to support the claims, but afterwards when the employee was being retaliated against.  Miles v. Wyndham Vacation Ownership,  No. 12-1288 (U.S. D.C. Puerto Rico, 1/24/14)
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