Employment & Labor Insider

Almost everybody seems to hate Human Resources. Not I. One of many things I appreciate about HR is the number of times they step in and stop their bosses and colleagues from doing something that sounds great in theory but will be a legal disaster in actuality.

I love you, HR. (Not in an inappropriate way.)

Here’s a case where HR didn’t intervene enough, possibly because it may have been hindered by higher-ups. The result? Seven strikes for the employer.

The windup . . .

Our plaintiff (we’ll call him Robbie) was the Director of Nursing for a medical staffing company. Robbie was from Kenya. He also had cancer, but he was apparently able to work and had never received any disciplinary action.

One day in May 2023 (the timeline is important here), the Chief Executive Officer allegedly met with Robbie and told him to fire some people. Allegedly because one was too old and because the others had “accents.”

Robbie said he wasn’t going to do that. As a result, he claims, the CEO stopped replying to his emails. Robbie was also allegedly excluded from meetings and “belittled.”

He made an internal complaint to the Chief Operating Officer. Afterward, the CEO told him that he was aware of the complaint and that “it will come back to bite you.”

"Hmm . . . coming from the CEO . . . yeah, I think that's kosher."

Then, in June 2023, Robbie’s annual compensation was reduced by $20,000. He was told that it was because the company was “bleeding money.”

During late summer and fall of 2023, Robbie asked for a couple of days off to see the doctor for his cancer. The CEO allegedly told him that he needed to be at work and needed to schedule his medical appointments in a way that didn’t interfere with his work schedule.

Meanwhile, in the fall of 2023, the employer had an accreditation review that went bad. The accrediting body issued what’s called a Preliminary Denial of Accreditation with a list of problems that had to be corrected.

Shortly after that, Robbie was fired.

Robbie sued. He claimed that he was retaliated against for refusing to discriminate based on their national origin and for making the complaint to the COO. He also claimed that he was discriminated against because of his medical condition and was refused the reasonable accommodation of time off for his doctor’s appointments. The employer moved for summary judgment, seeking to have the lawsuit dismissed before trial.

Employer bats it out of the ballpark. 

I'm being sarcastic.

A federal judge in Arizona is allowing all of the above claims to go to trial. (Robbie had some other claims that the judge dismissed.)

STRIKE ONE: Accreditation. Judge Susan Brnovich acknowledged that a threatened accreditation would usually be an airtight ground for termination. But in this case it was not. The reason? The Preliminary Denial did not mandate any corrections in nursing – which was Robbie’s area of responsibility.

Employer tip: If you are going to fire an employee for putting your company at risk, make sure the employee arguably bears some responsibility for, er, putting your company at risk. Otherwise your rationale will look like a sham, and that leaves the door open for the employee to argue that the true reason for termination was an unlawful one.

*whiff!*

STRIKE TWO: Pay cut. Remember when I said Robbie got a pay cut of $20K a year? And the employer told him at the time that it was because the company was “bleeding money”? Well, after they got to court, the employer said the pay cut was made to correct a clerical error.

One of the ways a court decides whether an employer’s rationale for taking action is “pretextual” – meaning a lie to cover up the fact that the real reason was an unlawful one – is “shifting explanations.” If the employer changes its story, then it may be trying to hide something.

Employer tip: Stick to your story. Give the same explanation to the employee, to your state unemployment agency (in the case of a termination), to the Equal Employment Opportunity Commission or other agency if the employee makes a complaint, and to the court if you wind up in court.

That said, honest mistakes do happen. If you have to change your story, go ahead and change it as soon as possible with a full explanation (and appropriate mea culpas). Here's an example invented by me:

Your honor, we did tell Robbie that our organization was ‘bleeding money,’ because that was what we thought based on what our accountants had told us. A month after the pay cut took effect, a new accounting firm completed an audit and found that we were in the black but that Robbie was still overpaid because of a Payroll error. We did not discuss it with Robbie because the correct explanation would not have made any difference to his pay. In hindsight, that was a mistake on our part, but we never lied. Please see attached Declarations of Joe College, CPA, and Payroll Supervisor Daisy Bumstead confirming that this is what happened.

STRIKES THREE THROUGH SEVEN: Failure to accommodate. The employer had a lot of arguments for why Robbie’s reasonable accommodation claim should fail. Every one was a loser.

3 - “Robbie didn’t provide documentation of his medical condition.”

Judge: “He doesn’t have to provide it, and you conceded that he had cancer.”

Note from me: Of course, if the employer needs and asks for documentation, then the employee should usually provide it. But in this case, there was no indication that the employer had even requested documentation, much less that Robbie had refused to comply with such a request. In addition, the employer wasn’t disputing the fact that Robbie had cancer.

4 - “Robbie didn’t make his request for time off in writing.”

Judge: “He doesn’t have to.”

5 - “We only refused to let him take his requested time off once.”

Judge: “Once is enough.”

6 - “We let Robbie sit and rest as needed.”

Judge: “He needed time off to go to the doctor. How does sitting and resting time address that?”

7 - “Robbie could have used his paid time off to go to his doctor’s appointments, but he asked for ‘leave.’”

Judge: “Huh?”

Also Judge: “Robbie said that he didn’t use his PTO to cover his time off for doctor’s appointments because he was afraid he would get in trouble for being away from work.”

Strike Seven, and yer OUT!!!

And you thought I was kidding about that "seven strikes" stuff. :-D

The Usual Disclaimer: This case was decided on summary judgment, so a “loss” means that the parties will go to trial if they don't settle. It is possible that the employer will win at trial, despite the seven strikes against it. (After all, it takes 81 strikes to lose a ball game on strikeouts, right? Unless the other team is shut out, and they have to go extra innings?)

One more thing: I can never blog about strikeouts and employment law without including a link to this masterpiece.

Happy Memorial Day weekend, and thank you to all who have given their lives for our country.