Four termination “No-Nos” and 10 million reasons to avoid them
In 2021, Ascension Genesys Hospital terminated Nicole Walker from its residency program after she failed a required licensing exam for the second time.
This month, a state court jury in Michigan awarded Dr. Walker $10.3 million in damages because of that termination.
You might be asking, How can a student who twice failed a required licensing exam score such a huge verdict?
The answer appears to be that the hospital was the maker of its own demise.
Prelude to judgment
Based on the limited information available about a state court trial, it appears that Dr. Walker was admitted to the hospital’s Obstetrics and Gynecology residency program in July 2019.
The terms of the program required all residents to pass the COMLEX Level 3 exam by December 2020.
But the COVID–19 pandemic prevented Dr. Walker from studying for, taking and, if necessary, retaking the exam during 2019 and most of 2020.
In September 2020, Dr. Walker took the exam and failed. As best as I can tell, those results were announced in November or December 2020.
Dr. Walker then asked for more time to retake the exam and was given a brief extension to January 2021.
The hospital knew Dr. Walker was pregnant and would be on maternity leave when she was expected to retake the exam in January.
Dr. Walker failed the test, and the hospital terminated her from the residency program.
It appears that the termination had nothing to do with Dr. Walker’s clinical abilities and was based solely on her failing the exam.
In June 2021, Dr. Walker took the exam for a third time and scored 536, well above the required passing score of 350. But the hospital rejected her request to be reinstated to the program.
Lesson No. 1: Treat others as you would treat your own.
When the hospital required Dr. Walker to retake the test in January 2021, it knew she would be on maternity leave and dealing with a newborn baby.
My children are 36 and 40, but I still remember those days. Feeding every three hours. Lots of crying and diaper changing. No sleep. Nerves on edge. And, as the dad, I had the easy part. A big shoulder for burping.
If it was your daughter, and her employer required that she study for and take a life-altering exam while needing to deal with all of that, how would you feel?
Just like the jurors did, I suspect.
Treating people with a dose of humanity costs nothing. Failing to do so can cost a lot.
Lesson No. 2: Treat similarly situated employees similarly.
According to the reported information, residents who failed the exam and were not pregnant or on maternity leave were offered probation, remediation, or other assistance. Dr. Walker was not offered any of that.
Sixty years of employment law jurisprudence recognizes that few employers admit to firing an employee for a discriminatory reason. They will not say, “What? You’re pregnant? You're fired.”
Because of that, the law permits jurors to infer discriminatory intent from the circumstances of the case.
Among the most important of these facts is disparate treatment. Courts and jurors can infer discriminatory intent when employees outside a protected class, like men, are treated more favorably than employees in a protected class, like pregnant women.
Considering the size of the verdict, I suspect the jury made such an inference.
Unless you don’t mind writing big checks to terminated employees, don’t let your managers and agents treat similarly situated employees in a dissimilar manner.
Lesson No. 3: Don’t think it, and for sure don’t say it.
It appears that one of the doctors in the residency program told Dr. Walker that being a mother would make it harder for her to devote sufficient time to her residency and that she should consider another career path.
Policies, training, and reporting procedures can help to prevent biased people from making biased comments, but they can’t prevent it entirely. Once discovered, such comments need to be addressed and corrected.
Antiquated views about women and motherhood, or any other protected group, have no place in today’s workplace. Employers need to be vigilant about ensuring that they do not affect employment decisions.
Lesson No. 4: Hubris can be a dangerous thing.
Dr. Walker was one of three residents chosen for the residency program out of hundreds of applicants, and her clinical abilities in the program were never questioned.
Although she failed the exam in September 2020, so did others. And her failure in January 2021 appears to have been related to her having to study for and take the exam while caring for a newborn baby.
Once life calmed down, and she took the test again in June 2021, she passed with flying colors.
But the hospital refused to reconsider its termination decision and rejected her request to be readmitted to the program. A refusal that may have contributed heavily to the $10 million dollar judgment against it.
There may be occasions when the tea leaves tell you that an employment decision was made for questionable or discriminatory reasons. If you find yourself in such a situation, don’t let your hubris prevent you from reversing course or making an unconditional offer of reinstatement.
It sure beats paying millions of dollars to a former employee.
It ain’t rocket science
Employment law can be a complex minefield of rules, regulations, and legal requirements.
Basic common sense and decency requires no guidebook.
If you treat employees as you would want to be treated, you probably will never find yourself with pen in hand, writing a seven-figure check.
