Retaliation claims of any variety are potentially explosive for employers. Nothing angers jurors, courts or governmental agencies like an employee’s accusation they were fired in retaliation for exercising their rights or “doing the right thing.” Ultimately, a jury, court or agency must decide: “What was the employer’s true reason for firing the employee?” A case involving a Tulsa retirement community shows us a few of the factors that come into play when an employee accuses an employer of retaliatory motivation.

Unreported sexual abuse complaint

For more than three years, Tracie Moss worked as a nursing home health care administrator for University Village Retirement Community in Tulsa. Vanessa Neal was University Village’s executive director, and Aleshia Coble was director of nursing. Moss’s performance evaluations had been satisfactory; she consistently received “meeting expectations” or “exceeding expectations” ratings. Moss had never been disciplined by her employer.

As provided by the Family and Medical Leave Act, Moss took maternity leave to care for her newborn child from October 2011 until January 9, 2012. What she found when she returned to work at University Village was troubling.

On January 4, 2012 – five days before Moss returned from her FMLA leave – a University Village resident alleged they had been sexually abused by Michael Knighten, a nurse’s aide working for the retirement community. In the past, Knighten had been accused of sexually inappropriate behavior towards another University Village staff member. The employer was also aware that Knighten had pled guilty to an assault and battery charge.

Oklahoma Department of Health regulations require retirement communities like University Village to report to the Department any allegations of resident abuse or neglect. Yet, when she resumed her job on January 9, Moss discovered University Village had not made the required report. Moss immediately investigated the resident’s complaint against Knighten. On January 13, Moss reported the abuse allegation to the Department of Health. Moss was particularly critical of Director of Nursing Coble. Moss believed Coble had given Knighten special treatment based upon their friendship. When Moss suggested to Executive Director Neal that Coble should be disciplined for failing to timely report a resident’s allegation of sexual abuse, Neal accused Moss of trying “to reestablish her territory” after returning from her maternity leave. Neal instructed Moss to “be more supportive of Coble.”

Eleven days later, Neal fired Moss.

What a shock: A lawsuit was filed

Moss sued University Village over her discharge on two grounds. First, Moss claimed her firing amounted to wrongful discharge in violation of public policy. Specifically, Moss accused her employer of firing her in retaliation for reporting the resident’s complaint against Knighten. Second, Moss accused University Village of firing her in retaliation for taking FMLA leave.

The employer denied Moss’s discharge had anything to do with reporting the resident’s complaint or her maternity leave. According to University Village’s termination document, Moss had been fired based upon a “[l]ack of fit in the UV culture” and “failure to display actions that support our Mission Statement.” Not exactly a monument to detail and specificity. The termination document also referred to previous counselings Moss had received. Moss denied she had been previously counseled and accused University Village of creating the documentation after she filed her lawsuit. Moss pointed out that, contrary to the employer’s practice, the underlying documents had not been signed by Moss or a member of University Village’s human resources staff. Neal eventually acknowledged that Moss had never been disciplined prior to her firing. Based on these facts, the Tulsa federal court determined Moss’s retaliatory discharge claims should be decided by a jury.

Lessons about retaliation claims

All claims of retaliatory discharge turn on the employer or supervisor’s motivation. Did the employer fire the employee based on their protected activity – here, reporting the resident’s complaint and/or taking FMLA protected leave – or was the employee legitimately fired based on other, non-retaliatory reasons? A number of facts made University Village’s discharge of Moss risky:

• Timing. Moss was fired 11 days after reporting the complaint to the Department of Health and 15 days after returning from her FMLA leave.
• Previous performance history. Moss’s employment history was marked by favorable performance evaluations and no instances of prior discipline.
• Contested documentation. Moss’s challenge to the accuracy and creation of the termination paperwork was effective.

Understand that firing an employee who has engaged in a protected activity bears greater risks than other discharges. Before making a discharge decision, take the time to assess the particular circumstances. Consider factors such as timing and the employee’s performance history. And make sure the supporting documentation is accurate.

Moss v. University Village Retirement Community, Case. No. 12-CV-307-JED (N.D. Okla. 9/2/14)