Hospital did not violate Age Discrimination in Employment Act because it had an honest belief that terminated employee had violated policy regarding patient privacy.
A sixty-three year old hospital nurse and a fifty-three year old radiology assistant sued the hospital where worked, alleging age discrimination after it fired them for committing a serious policy violation. The nurse’s granddaughter had come to the hospital for x-rays, and her daughter-in-law, the child’s mother, forget to take them home with her. She gave her mother-in-law oral permission to retrieve the x-rays the next time she was at work. After several employees told the nurse she needed written permission to remove patient records, she finally got the x-rays from the radiology assistant. The hospital investigated the incident, and determined that by obtaining the records without written authorization, the two employees had committed a “class one” policy violation regarding patient confidentiality, and that they should both be terminated. They sued, contending that their terminations were pretext for age discrimination.
The court found that the hospital lawfully fired the plaintiffs. To show pretext, a plaintiff needs to demonstrate that the legitimate, non-discriminatory reason her employer gives for an employment decision is actually a lie, or not the real reason. In this case, however, the hospital had an honest belief that the plaintiffs had violated its confidentiality policy. Even though evidence showed that there was ambiguity in the way some hospital officials understood the patient record policy, there was no question that the individuals who made the termination decision truly believed the plaintiffs had committed the infraction. Further, it didn’t matter that the nurse had oral authorization to obtain the x-rays or that she was not taking them for an unlawful purpose. To show pretext, the plaintiffs needed to show that the reason the hospital gave for their terminations was not the real motivation for firing them. In this case, there was no question that the terminations were motivated only by the policy violation, not the plaintiffs’ ages.
This case shows that pretext depends on whether an employer has an honestly held, legitimate reason for its employment decision, and not whether the reason is actually correct. Here, it didn’t matter that the employer could have written its policy in a clearer manner; all that mattered was that it truly believed the plaintiffs committed the infraction.
--Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Allen v. Highlands Hosp. Corp., -- F.3d --, 2008 WL 4629518 (6th Cir. October 21, 2008)].
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Employers beware: company holiday parties can be source of liability.
At this time of year, many employers sponsor and host holiday parties for their workforces. Such parties can be a morale booster, a thank you for a job well done all year, and a time for workers to relax and unwind. But if an employer is not careful, holiday parties can also create legal liability. Awareness of the issues and careful planning are the best precautionary measures a smart employer can take to prevent such ill after-effects.
First, if an employer provides alcohol at its gathering, there is the possibility that it could end up liable for injuries or damages caused by an inebriated employee. Every state has different laws regarding the liability of a “social host” that provides alcohol to a guest who later is involved in an accident with a third party. In most cases, the specific facts of the situation will determine the outcome, but the important thing to understand is that even if an employer is not legally liable for the actions of a drunk employee, it still may have to spend thousands of dollars proving that.
Instead, a better policy would be to either refrain from serving alcohol at the party at all or, if that’s not feasible, to take other steps to limit alcohol consumption, such as by providing a limited number of drink “tickets” to each employee, closing the bar well before the party ends, asking bartenders to keep eyes open for obviously drunk employees, or offering incentives to employees who volunteer to be “designated drivers.” In any case, employers are urged to consult with an attorney to determine the law in their particular jurisdiction.
Holiday parties, particularly ones where alcohol is served, can also provide a setting for lewd behavior, sexual advances, and other conduct that is potentially actionable as sexual harassment under Title VII. To help protect against such claims, employers should re-distribute the company’s sexual harassment policy before the holiday party takes place, and emphasize that all guidelines will apply at the party, even if it occurs off-site and after work hours. Remind supervisors to set a professional example; they should keep an eye on employee behavior, and not invite co-workers to any informal gathering after the employer’s party. And, as should be obvious, do not hang any mistletoe!
A little bit of common sense before the holiday party can help employers avoid big headaches afterwards. So be smart when planning the holiday party, and everyone can have a good time.
--Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
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Employee with performance problems not protected from termination merely because he had recently requested FMLA leave.
The plaintiff in this case, a bank manager, notified his employer that he needed to take FMLA leave for knee surgery that would take place in two phases. His employer approved his leave request and the manager took time off in the spring for several medical procedures, with his surgery scheduled for early fall. That summer, the bank’s central management began a routine risk audit of the branch, and discovered that a teller had embezzled nearly $600,000 over the past five years. Further, several bank managers had falsely reported that monthly teller and vault audits were being performed when in fact, they were not. After an investigation, the bank fired several branch managers, including the plaintiff. He sued, contending that his termination was unlawful because it interfered with his rights under the FMLA.
The court disagreed and found that the termination was lawful. It explained that the mere fact that an employee has been approved for FMLA leave does not prevent that employer from being disciplined or terminated for performance problems completely unrelated to the leave. Specifically, the manager would have been fired even if he had never requested leave. There was nothing to link his request for leave to the embezzlement investigation or the decision to terminate several branch managers, so the FMLA could not protect him.
This case clearly demonstrates an important concept with respect to many employment laws. While statutes such as the FMLA, Title VII, and the ADA give employees certain rights and protections, they do not prevent employees from being disciplined or terminated for reasons completely unrelated to their rights under those laws. If the employee would have been terminated even absent his or her claiming rights under an employment law, it will usually be lawful for an employer to continue with its discipline or termination plan.
--Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Edwards v. Harleysville Nat'l Bank, 2008 WL 4589729 (E.D. Pa. October 14, 2008)].
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Court finds that driving is not a “major life activity” under the Americans with Disabilities Act.
An epileptic employee who sued her employer after she was fired may not be able to keep her jury award, a federal appeals court recently ruled. The plaintiff’s seizure disorder prevented her from driving, a function that was required as part of her job duties. Her employer fired her and she sued under the ADA. The employee had argued that her epilepsy was a disability that substantially limited the major life activities of working, caring for herself, and driving.
Although a jury found that the plaintiff was fired because of her disability, it did not specify which of the three major life activities were at issue. The Court of Appeals held that driving was not a major life activity under the ADA, and therefore, the plaintiff’s inability to drive could not support her claim. It explained that if the jury relied solely on the plaintiff’s inability to drive as the basis for its verdict, the decision could not stand.
Specifically, the court found that driving, while important to many individuals, was not the kind of “major life activity” the ADA was designed to protect. While being able to drive may make it easier for a disabled individual to work or care for herself, it isn’t a requirement. True major life activities affect all individuals equally, without regard to where they live. The court noted that in some parts of the country, where public transportation is common, employees may be able to both work and care for themselves without ever having to drive at all. The fact that the plaintiff lived in an area without public transportation did not, in itself, make driving a major life activity. The case had to be returned to the trial court so that a new jury could decide if the plaintiff’s epilepsy prevented her from being able to work or care for herself on their own, without regard to her inability to drive.
This case explains that driving, by itself, is not a major life activity, even though it prevented the plaintiff in this case from being able to perform her job. The inability to drive does not always have such a limiting affect, and the court noted that true major life activities, such as being able to see, walk, hear, or think, impact individuals without regard to where they live.
--Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Kellogg v. Energy Safety Servs. Inc. d/b/a Oilind Safety LLC, 544 F.3d 1121 (10th Cir. 2008)].
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