Posts Tagged ‘pretext’

In the disability discrimination case of Buffington v. PEC Mgmt. II LLP, the U.S. District Court for the Western District of Pennsylvania had to decide whether reasonable minds could differ over whether a former Burger King manager was fired for violating a company rule or for taking too much time off to care for her teenage son who was battling a cancer relapse.   The former manager alleged that Burger King fired her for tending to her sick son, but that the company used her violation of a company policy as a pretext for the firing, which firing was in violation of the American with Disabilities Act and the Pennsylvania Human Relations Act.

How did we arrive at this mess?  Well, the former manager had been employed by Burger King for seven years with no written or oral warnings regarding her performance, but then she violated a company policy by sending an employee out to pick up product from another Burger King that the manager’s Burger King had run out of.  At that time, the former manager was the only manager on duty and the employee that she choose to pick up the product drove his own car to the nearby Burger King.  Unfortunately, the employee got into an accident while running the errand.  Yikes!  I guess you can’t always have it your way.

Anyway, the accident resulted in the former manager’s firing.  Burger King’s corporate policy forbid nonmanager employees from driving for restaurant business.  The company claimed that this violation of the corporate policy coupled with the former manager’s allegedly declining, but undocumented performance, was was grounds for termination.  The former manager disagreed and claimed that the company just used her violation of the policy as an excuse to fire her because she had been tending to her sick son.  In fact, the former manager alleged that the rule prohibiting nonmanager employees from driving for restaurant business was never enforced and that it was common practice for managers to send staff on errands to other restaurants.  The former manager also presented evidence that other mananagers outside of her protected class (i.e. employees who were not caring for sick children)had violated the policy, but were not fired.  If true, these allegations create a problem for Burger King.

It gets worse.  The former manager alleges that her supervisor met with her before her firing and that during this meeting the former manager’s supervisor commented that the restaurant needed “someone whose head is there 100 percent,” and said that now the former manager could spend more time with her son.  Ouch.  For the employer’s sake, let’s hope this isn’t true.

Based upon the above facts, following her termination, the former manager sued Burger King.  Burger King claimed that the manager was fired because her performance had been steadily declining and the violation of the company policy was the straw that broke the camel’s back.

Nonetheless, in denying Burger King’s motion for summary judgment, the Court found that the former manager sufficiently raised questions of genuine material fact regarding Burger King’s true motivation for firing the manager.  If the true reason for the termination of the manager was the manager spending time with her son, then a jury might find that Burger King relied on unfounded stereotypes or assumptions about the type of care the manager would need to give to her son in the future.

Employers’ Takeaway: 

First, enforce policies uniformly and consistently.  The former manager claimed that other managers outside of her protected class violated the vehicle policy without being fired.  Although this is merely an allegation, it serves as a reminder of the importance of uniform policy enforcement.

Second, keep good records of employee performance. Burger King claims that the manager’s performance had been declining.  If this was the case, Burger King should have kept a better record of her allegedly declining performance in the form of warnings and written evaluations.

Third, ensure that supervisors receive anti-discrimination training.  If the supervisor truly made the comments that the manager alleges she made, such comments were inappropriate.  Supervisor training might have helped to avoid such unwanted comments.

The attorneys at Harmon & Davies are here to advise employers on policy enforcement issues, performance evaluations, and supervisor training.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Disability Discrimination, Labor & Employment | No Comments »

In the case of Jaszcyszyn v. Advantage Health Physician Network, the Sixth Circuit recently sided with an employer that terminated an employee after it caught her partying at a Polish heritage festival while she was supposedly too disabled to work.  It’s a case of Facebook strikes again.  The termination was based upon the employer’s belief that the employee was engaging in FMLA fraud.

The whole ordeal came to the employer’s attention after the partying employee was spotted by her Facebook friend/coworker partying it up while her colleagues were at the office covering for her.  Naturally, the coworker took the pictures to a supervisor.

The employer gave the employee an opportunity  to explain the discrepancy between her claim of complete incapacitation and her partying behavior in the photos.  Guess what?  The employee didn’t really have a response, was silent, or claimed that she was in pain at the festival and just not showing it.  When the employee repeatedly failed to respond or to provide a legitimate justification for her action, the employer terminated her.  Following the employee’s termination, someone in HR completed a report that selected “absenteeism/lateness” from a list of six possible reasons for discharge.

The employee filed a lawsuit in the U.S. District Court for the Western District of Michigan alleging that she was fired in violation of the FMLA.  Her claims included a count for interference with her right to take leave and a count for retaliation for taking leave.  The trial court dismissed the employees’ claim before it went to trial and the employee appealed to the Sixth Circuit.

On appeal, the court found that the employer had not interfered with the employee’s right to take FMLA leave as it had granted her requests for FMLA leave in full.  As for the employee’s retaliation claim, the court found that the employee offered little or no evidence linking her termination to activity protected by the FMLA.  Moreover, even though the person in HR had checked “absenteeism” on the form rather than “fraud” the court was not persuaded that the employee’s mere use of leave was the reason for her termination.  The court specifically said that selecting absenteeism on a standardized form did not establish that the employer’s explanation of the firing was a pretext for unlawful retaliation.  Rather, the court found that the employee never refuted the employer’s honest belief that the employee’s partying at the Polish heritage festival was inconsistent with her claims of disability.  Therefore, the employee could not show that the employers legitimate reasons for terminating the employee, i.e., her fraudulent behavior, was a pretext.

Employer Tip:  Employers should be aware of the sensitive issues that surround terminating employees while they are on FMLA leave.  While this case ended well for the employer, the employee might have had less fodder for her lawsuit if the HR person had not checked “absenteeism”, but had rather written “fraud” on the form.  It is recommended that you consult with an attorney before making such decisions.  The attorneys at Harmon & Davies are here to advise employers on all Employment and Labor Law matters.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in FMLA, Labor & Employment | No Comments »