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Can you discipline or terminate this employee? v.8

August 21, 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, either federal or state, that either affirmed an employee discipline or termination or reversed it.   In some cases, HR may have been the cause of the lawsuit.

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

  1. The employee went out numerous times for FMLA and ADA for breast cancer over a period of 10 years.  When asked by her manager to work extra shifts the employee declined, requesting a change in jobs and FMLA leave. She was told that she not eligible for FMLA leave, but she could request a 30-day personal leave of absence. The employee filled out the forms and returned them to HR without speaking to her team leader or manager. Allegedly believing she was on leave because HR may have given her the ok, the employee did not show up for her scheduled shifts on the next two days and did not return her manager’s phone calls. She was fired on three days later for being a “no-call, no-show.”

  2. The Fire Engineering Manager was tasked with ensuring that his subordinates’ engineering plans were sufficient under “applicable fire safety standards.” One of his employees allowed fire safety designs to be marked as approved although they were not reviewed.  The Fire Engineering Manager reported it internally.  Although the company conducted an investigation, nothing was found to be in violation.  The manager was terminated. He then claimed he was terminated for “whistleblowing” which he believed to be in violation of the Sarbanes‐Oxley Act of 2002.

  3. The employee, a nursing home activities aide, claimed that she was fired because she refused to pray the Rosary with a patient. She did not tell the manager that her religious beliefs would prohibit this activity until the time of termination.

  4. The employee was “forced” to work immediately after giving birth because the company was implementing a new payroll system. She wanted to take FMLA but her boss said the company needed her to complete the implementation and denied her FMLA request.   The day after getting home from giving birth, the employee was required to answer calls and work throughout the weekend. However, employee was paid full salary while working after giving birth. Because the manager did not like the implementation, she tried to force the employee to take another, lesser, job or be fired.  The employee was fired for not taking the other job.

  5. After developing a medical condition that required lengthy daily treatments and prevented her from sitting at a desk for long periods, an employee sought an accommodation allowing her to work full-time from home. When her supervisors asked for additional information to use in determining a reasonable accommodation, the employee resigned.  She then sued claiming constructive discharge.

The answers:

  1. Personal leave approved? Termination reversed. The court held that there was an issue of fact whether HR approved the leave or not.  It also found that a reasonable jury could determine that the employer had initially approved the leave request but then failed to deliver on this reasonable accommodation when it revoked the approval two days later on the unfounded ground that she was a no call, no show. Schwab v Northern Ill Med Ctr dba Centegra Hosp-McHenry, No. 12-8398 (Northern District of Illinois, 5/20/14)

  2. Whistleblower retaliation: Termination affirmed. It is unlawful to retaliate against employees when they take lawful action to disclose information or otherwise assist in detecting and stopping actions which they reasonably believe to be fraudulent under § 1514A. This section includes the federal mail fraud, wire fraud, bank fraud, and securities fraud statutes, in addition to “any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.”  However, since a single employee failed properly to review fire safety designs, it did not fall under any of the fraud statutes. Therefore, it did not afford the Manager protection under Sarbanes Oxley. Nielson v. AECOM, No. 13‐235‐cv (2nd Circuit Court of Appeals 8/8/14)

  3. Rosary termination:  Termination affirmed. Since the employee failed to explain her religious beliefs to her employer beforehand, no reasonable accommodation could be expected or provided without that knowledge.   Nobach v. Woodland Village Nursing Ctr, No. 13-60378 (5th Circuit Court of Appeals, 8/7/14)

  4. FMLA denial: Denial reversed. In order to prove that she was “prejudiced” by an FMLA violation, an employee need only demonstrate some harm remediable by either damages or equitable relief.  The court found that it was obvious that if an employer coerces an employee to work during her intended FMLA leave period, and subsequently reassigns her based on her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.  Evans v. Books-A-Million, No. 13–10054 (11th Circuit Court of Appeals, 8/8/14)

  5. Constructive discharge: No constructive termination found.  Few disabilities are amenable to one-size-fits-all accommodations. There must be a reasonable interactive process to determine the appropriate accommodation. When more info was requested the employee refused to engage and resigned.  Therefore, the employer had no opportunity to determine a reasonable accommodation. The court upheld the “termination.”  Ward v. McDonald, No. 12–5374 (DC Circuit Court of Appeals, 8/12/14)
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