Don't let medical absences cloud your judgment

by McAfee & Taft

In late January, the Tenth Circuit Court of Appeals issued a decision in Smothers v. Solvay Chemicals Inc. (No. 12-8013, 10th Cir. Jan. 22, 2014) that emphasized the importance of conducting a proper investigation and applying consistent discipline.


Steven Smothers worked as a mechanic for Solvay Chemicals for 18 years until he was terminated, ostensibly for a first-time safety violation and a dispute with a co-worker. In his lawsuit, Smothers alleged the company’s true reason for terminating him was retaliation for taking FMLA leave and discrimination on the basis of his disability in violation of the ADA.

injured-workerSmothers injured his neck in 1994, which required three surgeries between 1999 and 2004 and numerous other medical procedures. He suffered from severe ongoing pain, which caused him to miss quite a bit of work. Without pain treatments, the pain was so severe that he could not work. The pain also affected his sleep, as he often was able to sleep for only four hours, sometimes for up to six hours, a night.

Smothers sought and received FMLA leave from his employer for intermittent absences caused by his condition. Even though performance reviews showed he was an excellent mechanic with strong job knowledge, management and co-workers nevertheless complained about his FMLA-protected absences. One member of management pressured him to change from graveyard shift to day shift, where his absences could be more easily absorbed without the company incurring overtime. This move, however, would reduce Smothers’ income by $7,000 a year. Human Resources informed management that forcing this change would violate the FMLA. Management relented but continued to complain about Smothers’ absences from work.

In August 2008, Smothers removed a piece of equipment without following proper safety protocols. When a co-worker suggested he follow the proper safety protocol, Smothers disagreed and continued working. Later, the co-worker offered to assist; however, Smothers refused the co-worker’s assistance. According to the employer, Smothers told the co-worker, “I don’t want your kind of help” and said he “was going to take a sh*t and wanted to know if [co-worker] wanted to watch him to see if he did that right.” Smothers, however, described the interaction quite differently and asserted that the co-worker provoked the argument and began yelling at him. Witnesses characterized the interaction as an argument or confrontation.

Following this argument, the co-worker called management to make a complaint about Smothers. After receiving the complaint, the manager spoke with Smothers and drafted a summary of their conversation. They discussed removing the equipment without following the proper safety protocols. Smothers also told management that the co-worker had yelled at him in the maintenance shop. Management, however, did not tell him about the co-worker’s version of the events and did not ask him whether he actually made the comments that the co-worker alleged.

In a meeting with managers, Smothers tried to explain his version of the exchange with his co-worker, but one of the managers stated that the managers were not interested in hearing about the argument. The managers discussed the safety violation, and Smothers explained what he had done, apologized, and promised it would not happen again. He was subsequently suspended pending an investigation.

During the investigation, the co-worker was interviewed about his version of the argument; however, none of the decision-makers interviewed Smothers about his version of the argument. Smothers was then fired.

Following his termination, Smothers brought suit alleging FMLA retaliation, disability discrimination, and a state law breach of implied contract claim. Following discovery, the district court granted summary judgment in the employer’s favor. However, the Tenth Circuit reversed the district court’s grant of summary judgment on the FMLA retaliation and disability discrimination claims and held that the evidence taken in Plaintiff’s favor showed: “(1) [the employer] treated [Plaintiff] differently from similarly situated employees with comparable safety violations; (2) [the employer’s] investigation into [Plaintiff’s] quarrel with [his co-worker] was inadequate; and (3) [the employer’s] managers took negative action against Mr. Smother’s because of his FMLA-protected absences.”

Lessons learned from Smothers case

The bottom line: It is extremely important to conduct fair, impartial investigations and to apply discipline consistently across similarly situated employees.

Inconsistent application of discipline, as shown by the Smothers case, is a dangerous practice. Ensure that similarly situated employees (those employees with the same supervisor or who are subject to the same decision-maker) receive similar discipline for comparably serious offenses.

Perform proper investigations of both employee complaints and employee misconduct. Before starting an investigation, consider what policies or guidelines apply, how similar incidents have been handled in the past, what are you hoping to find out in the investigation, what questions will be asked, and if there are any actions (such as suspension) that need to be undertaken before the investigation can begin. Gather and review any relevant documents prior to starting the investigation.

It is important to select the right person to conduct the investigations. The person doing the investigation should have experience or training in conducting investigations and should be unbiased and unprejudiced.

Make sure to fully interview the employee who is under investigation and give him a chance to fully discuss or refute any allegations that have been made against him. Give the employee under investigation the chance to write down his side of the story. Consider whether witnesses can corroborate the allegations. Reach decisions based on the credibility of the witnesses and the information that the investigator has been presented. When an investigation is concluded, inform both the complaining party and the party being investigated the results of the investigation. Document everything.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McAfee & Taft | Attorney Advertising

Written by:

McAfee & Taft

McAfee & Taft on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.