By Amanda Jansen
We often receive calls from employers struggling to performance-manage employees who belong to one or more protected classes or who have engaged in protected activity. To be sure, given the broad scope of anti-retaliation laws, holding these protected employees accountable for their violations of performance and conduct expectations, while trying to avoid a retaliation complaint, can feel like navigating between Scylla and Charybdis. A recent pair of decisions from the Iowa Court of Appeals, however, reminds us that engaging in protected activity does not immunize employees from discipline or discharge.
In Fitzgerald v.
Hy-Vee, Inc., longtime employee
Tim Fitzgerald suffered from various medical issues, including a knee injury,
ensuing opioid addiction, and later, alcoholism. Fitzgerald had used FMLA and butted heads
with his superiors about his work restrictions.
The situation came to a head when Fitzgerald, while chatting with a
coworker, called a female coworker a “c*nt,” in her presence and loud enough
for her to hear. There was evidence he
had previously called this same woman a “bitch,” which added to her
outrage.
Hy-Vee, after investigating the incident, terminated
Fitzgerald’s employment for violating the anti-harassment policy. During the termination meeting, Fitzgerald
broke down and disclosed he was addicted to pain medication and alcohol and
said he needed treatment. Hy-Vee did not
process Fitzgerald’s termination paperwork for a couple of days, and during
this time, Fitzgerald sought medical help for his addictions and presented
Hy-Vee with a new FMLA request. The
termination stood, and Fitzgerald sued for disability discrimination and
retaliation.
The district court granted Hy-Vee’s motion for summary
judgment, and the Iowa Court of Appeals affirmed, holding no reasonable jury
could find that Hy-Vee’s articulated reason for termination (calling a female
coworker a “c*nt”) “was merely a pretext for intentional discrimination based
on his claimed disabilities.” Stay
tuned, however; Fitzgerald has applied for further review of the decision by
the Iowa Supreme Court.
The mere fact that this case continues in litigation
nearly five years after Hy-Vee
terminated Fitzgerald serves as a reminder to employers to thoroughly document
the basis for terminating employees (especially “high risk” terminations) and
ideally, to vet and pressure-test the decision with legal counsel.
In McCrea v.
City of Dubuque, Vicki McCrea, a
longtime City employee, began to have (documented) performance issues around
the time she got divorced and lost her mother to cancer. She took FMLA leave, and other leave to tend
to her mother’s estate (for which McCrea was the executor). She soon thereafter began to report that her manager
was chilly toward her. McCrea made an
internal complaint to HR, and her manager “became angry,” and began closely
documenting McCrea’s comings and goings, personal cell phone use, personal use
of the City’s copier and fax machine, etc.
Tension began to mount, as McCrea’s manager sought,
and was denied, permission to terminate McRae.
Ultimately, McRae presented a doctor’s note to the City saying her
relationship with her manager was increasing her stress and anxiety, and that “a
negative work environment could impact the performance of any employee. [McCrea] is quite capable of performing every
essential function outlined in her job description as she has done for the past
22 years with the city as long as she is not in this type of working
environment.” Nevertheless, McCrea
continued working for this same manager, and while still employed, she filed
two complaints with the Iowa Civil Rights Commission claiming discrimination
based on sex, disability, and retaliation for her internal complaint (and in
the second ICRC complaint, for her first ICRC complaint), as well as a lawsuit,
and due to the stress of the environment, a request for FMLA leave (which the
City did approve).
McCrea came in one day (the day her FMLA request was
approved) and found several memos form her manager on her desk documenting
various performance concerns. She then
confronted her manager, visibly upset, and said in a raised voice: “This is harassment. You need to back off or else. Leave me alone. You’ve been trying to get rid of me for five
years, just do it. Do you know what
blood pressure is? … This is killing
me.” She then said she was leaving for
the day due to her anxiety. A month later, the City summoned McCrea
into the office and terminated her under the workplace violence policy for
threatening her manager (i.e., saying “or else.”).
McCrea’s lawsuit proceeded to a bench trial, and the
district judge found against her. The
Iowa Court of Appeals affirmed, finding:
(1) McCrea failed to prove her anxiety was severe enough to constitute a
disability under the Iowa Civil Rights Act, and (2) McCrea failed to prove a
causal connection between her complaints and her termination. On the first point, the Court explained: “McCrea has not named any major life
activities—other than her specific workplace—that were affected by her
anxiety.” Citing a pre-ADAAA federal case, the Court said “‘an individual does not suffer a
disability under the ADA if [their] disability does not prevent [them] from
performing “a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills, and
abilities.”’” [Note this is arguably
contrary to the EEOC’s current guidance that mental illnesses substantially limit brain
function and thus almost always constitute a disability, as well as the Iowa Supreme Court’s direction to construe the
Iowa Civil Rights Act broadly.]
On the no-causation conclusion, the Court relied
heavily on the gap in time between McCrea’s first
complaint and her termination: “She
filed complaints on September 11, 2013 and January 17, 2014, however, she was
not fired until June 5, 2014—almost nine months after her first complaint.” Acknowledging there was ongoing conflict
between McCrea and her manager between these dates, the Court added:
Much of
McCrea’s complaints about how she was being treated at the office—things she
invariably described as “retaliation”—involved the enforcement of rules, though
she maintains they were only enforced against her. “The antiretaliation provisions of Title VII
and the ICRA do not … insulate an employee from discipline for insubordination
or ongoing violation of the employer’s policies just because they occur after
the plaintiff engages in protected activity.
(The argument about the rules only being enforced
against McCrea was not discussed in the Court’s opinion.)
Of note, McCrea has (like Fitzgerald) applied for
further review. We will await the Iowa
Supreme Court’s decision on these matters and update you as appropriate. Follow WorkplaceWise to stay abreast of these and other developments.
In conclusion, while neither protected-class
membership, nor engaging in protected activity, immunizes an employee from
discipline or discharge, neither does having a valid reason for termination
immunize an employer from litigation. It
is always advisable in these situations to consult legal counsel and weigh the
likelihood and cost of litigation against the business cost of keeping a
problematic employee in the workplace. BrownWinick’s Employment and Labor Law attorneys stand by; ready to help you troubleshoot these
matters.
No comments:
Post a Comment