To Terminate or Not to Terminate. . . That is the Question

by Miller & Martin PLLC

The Facts – “What Happened?”

The plaintiff, Ms. Mocic, worked as an EMT for the employer/defendant (SCEMS) for almost four years.  She became pregnant in 2009.  She requested and was granted an apparently uneventful FMLA leave in connection with her pregnancy.  However, she maintained that one of her supervisors told her that if she also wanted to take the additional 4 weeks of maternity leave provided under Tennessee law “that would depend on whether we like you or not.”  Interestingly, the supervisor admitted to making this comment.  He said he also added, “but of course you know we do,” to the end of it, and said he made it out of “desperation” “because Ms. Mocic kept questioning him over and over again about her maternity leave.”

Ms. Mocic also alleged that she was denied a request for one month of light duty in connection with her pregnancy, even though male employees had been provided with light duty when they were injured on the job.

Ms. Mocic further alleged that another supervisor repeatedly made comments to her “every time he saw her” regarding the fact that she was “out of uniform” because she could not tuck in her shirt once her pregnancy began to show.  She alleged that she had asked this supervisor and others to “order her a larger uniform” once she found out she was pregnant.  She said this supervisor’s response was, “You should have thought of that before you got pregnant.”

While out on FMLA leave in January of 2010, Ms. Mocic filed an EEOC Charge alleging pregnancy discrimination and a hostile work environment based on the three (3) situations described above.  She then returned to work in March of 2010 with no restrictions.

In August of 2010, Ms. Mocic was injured on the job (hurting her shoulder while lifting a 350-pound patient).  She requested light duty in connection with this injury but was told none was available.  She then went out on leave until late October when she was released to return to work with no restrictions. 

In November of 2010, Ms. Mocic's partner in her EMT job was also injured (off-the-job).  SCEMS had an informal policy of trying to pair male with female EMT’s, both from a lifting-assistance standpoint and a patient-relations standpoint, since some patients may feel more comfortable speaking with a male and others with a female in the transport process.  There were no other male EMT’s available at the time her partner was injured, so Ms. Mocic’s department head told her he was probably going to have to pair her with another female EMT until her regular partner could return to work. 

Her department head then reported to her supervisor that Ms. Mocic told him that this was unacceptable and that due to her own recent shoulder injury she would be “calling in for additional help for every call she was called out on.”  Based on this report from the department head, her supervisor made the recommendation to SCEMS’s Director to terminate Ms. Mocic for “refusing to do her job as instructed,” which he did on November 12, 2010.  In her termination meeting, Ms. Mocic explained that she only told the department head that she would need additional help for large or obese patients due to her past shoulder injury.

Before moving on to read what claims Ms. Mocic eventually asserted in court against SCEMS and what Judge Nixon had to say in response to SCEMS’s motion to dismiss them, take a few minutes to give some thought as to how you would have handled this situation if you had been SCEMS’s HR Director and the Director had come to you to ask your advice on (1) whether you believed they had good grounds to terminate Ms. Mocic, and (2) what additional steps, if any, SCEMS should take before doing so.  

Deep breath. . .sigh. . .now read on to find out what happened next!

Legal Claims

In her 2011 lawsuit, Ms. Mocic asserted the pregnancy discrimination and hostile work environment claims she had asserted with the EEOC earlier in 2010.  She added a retaliation claim under both state and federal law based on the fact that she was terminated just a few months after filing her EEOC Charge and based on SCEMS’s refusal to provide her with light duty following her August 2010 on-the-job injury as well.
Court Decision

The Court dismissed the pregnancy discrimination claim which was based on SCEMS’s denial of a new larger uniform – on the grounds that her supervisor’s comments regarding her inability to tuck in her uniform shirt once her pregnancy began to show had never given rise to an actual “adverse employment action” of a write-up, etc.  Lest you be too shocked (or comforted, as the case may be) about this decision – the Court used the supervisor’s comments as a significant part of its decision NOT to dismiss Ms. Mocic’s hostile work environment claim.  The Court also dismissed Ms. Mocic’s “retaliatory failure to provide light duty in August of 2010” claim – on the grounds that she was not able to show that any other employees had been provided with light duty during the period she needed it.

As referenced above, the Court did not dismiss Ms. Mocic’s hostile work environment claim.  A few of her co-workers backed Ms. Mocic up regarding overhearing her supervisor make the “out of uniform” comments on several occasions.  He even kicked her chair once by way of emphasizing his point?  Although SCEMS offered testimony through other supervisors that Ms. Mocic’s supervisor was “just a stickler for uniforms,” they did not offer any testimony that he had ever made similar “tuck in your shirt” comments to any male employees, kicked their chairs, or threatened to write them up, as he had Ms. Mocic.

The Court also did not dismiss Ms. Mocic’s retaliatory discharge claim.  In federal court, the temporal proximity or time between a charge or complaint of discrimination, harassment, etc. and an adverse employment action is not supposed to be sufficient in and of itself to support a legal causal connection between the two events.  The Court here seemed to ignore this general rule.  SCEMS’s counter to this finding was that it had a “good faith belief” that Ms. Mocic had “made the comment in question” (i.e., that she was going to “call for additional help on every call if they put her with a female partner”) when it terminated her. 

The Court rejected this idea and said that merely making such a comment (without the employer actually “trying it out” to see if Ms. Mocic truly would follow through with it once on the job with a female partner) was not in its opinion a sufficient reason to fire someone – particularly when the comment was reported to the same supervisor whose prior conduct formed the basis for Ms. Mocic’s January 2010 EEOC Charge.  [One additional note on this “try it and see” idea is that Ms. Mocic’s EMT team did not handle emergency transports for SCEMS, such that the Court did not buy the idea that “trying it to see” if Ms. Mocic would in fact request assistance on all of her calls would have “threatened safe and efficient patient transport/care.”] 

The Court also found that Ms. Mocic’s express denial in her termination meeting that she made the “I’m going to request assistance on every call” comment also contradicted SCEMS’s “good faith belief at the time of her termination” position [even though the decision to terminate had already been made prior to this meeting].  The Court said that since this meeting was the “first and only time” Ms. Mocic was given an opportunity to provide “her rebuttal to the events leading to her termination,” even comments made “in” the termination meeting could be used to rebut a “good faith belief” defense on behalf of SCEMS.  “The employer’s decision was not made based on a good faith investigation.”  While it is not necessary for an employer to “overturn every stone” in conducting an internal investigation, merely getting a written statement from the department head which was typed up for him by Ms. Mocic’s supervisor of his version of her comment was not sufficient to give rise to a reasonable good faith belief in and of itself here.

Takeaway Tips

1. Be sure you can support the denial of a request for light duty based on your business needs.  (This would be important in the ADA context as well if the condition at issue is a disability rather than a normal pregnancy as was involved in this case).

2. Be nice to pregnant ladies.  Making small concessions like purchasing a larger uniform if you provide uniforms for your employees – or here, just letting the employee wear her shirt untucked without “harassing” her over it! – is just the right thing to do, law or no law.

3. As we pointed out in our March 2011 alert concerning the U.S. Supreme Court’s recognition of the “Cat’s Paw” doctrine in Staub v. Proctor Hospital, before making a termination decision based on the “recommendation” of a supervisor whose conduct also has been the subject of a recent EEOC or other charge or complaint or other protected activity, conduct your own independent investigation of the situation rather than only relying on that supervisor’s investigation of what occurred.

4. Try to get the employee’s side of the situation BEFORE the termination meeting if at all possible.  If the termination meeting is your first chance to get “their side,” consider whether “their side” warrants further investigation before going through with the termination.  (You can always put them on an unpaid administrative leave while you are looking into the situation so as not to have to send them back to work in the interim – and then pay them for this time IF “their side” turns out to be true – or convert some or all of the administrative leave into an unpaid suspension IF “their side” turns out to warrant a lower penalty than termination but still merits some form of discipline.)

As always, for more tips or questions concerning “tricky terminations” you are faced with, please  contact Stacie Caraway or any other member of our Labor and Employment Law Practice Group.  An ounce of legal counsel is cheaper than a pound of litigation!

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.

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