Classic Employer Retaliation: Looking For A Reason To Fire Employees Who Exercise Employee Rights
When wanting to act on a retaliatory motive, our employee rights lawyers in Sumter County, Florida have learned, employers will look for a reason to fire employees who exercise their employee rights. As the court in Hornfischer v. Manatee County Sheriff’s Office, 136 So.3d 703 (Fla. 1st DCA 2014) observed, “an employer does not announce or state in writing that it is discharging an employee because he or she has [exercised employee rights].” “It is not difficult,” the Hornfischer court explained, “for an employer wishing to discharge an employee for [exercising his or her employee rights] to find another plausible reason or reasons to justify its decision.”
A common retaliatory tactic used by employers when looking for a reason to fire employees is to subject them to increased scrutiny. Through increased scrutiny, employers know they will eventually find a reason for firing employees who exercise their employee rights. The increased scrutiny generally leads to disciplinary actions, negative performance evaluations, or performance improvement plans which employers use to justify the retaliatory termination. In turn, the disciplinary action, negative performance evaluations, or performance improvement plans culminate in termination. The disciplinary actions, negative performance evaluations, or performance improvement plans arising out of the increased scrutiny provide employers with a fig leaf to cover up their true, retaliatory motive for firing employees.
In this article, our employee rights lawyers in Sumter County, Florida explain how the alleged facts in Massey v. BellSouth Telecommunications, LLC, Case No. 12-cv-00656 (W.D. Ky. Dec. 2, 2014) are illustrative of what some employees endure after exercising their employee rights.
Employees’ FMLA Rights
The Family Medical Leave Act (“FMLA”) was passed in 1993, as the court in Satterfield v. Wal-Mart Stores, Inc.,135 F.3d 973 (5th Cir. 1998) explained, “because Congress found inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.” Under the FMLA, an eligible employee is entitled to a total of twelve workweeks of leave, without pay, during any twelve-month period for any one of the following reasons: (1) the birth of a son or daughter of the employee and to care for the newborn child; (2) the placement of a son or daughter with the employee for adoption or foster care; (3) in order to care for the spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition; and (4) because of a serious health condition that makes the employee unable to perform the functions of the employee’s job. In order to guarantee the availability of FMLA rights and protect employees who invoke their FMA rights, the FMLA prohibits employers from retaliating against employees who exercise or attempt to exercise their FMLA rights.
Retaliatory Discharge Lawsuit
In Massey, two women, Massey and Dishman, brought retaliatory discharge claims against their former employer, BellSouth Telecommunications, Inc. (“BellSouth”), pursuant to the FMLA. Massey and Dishman allege that they were fired in retaliation for exercising their FMLA rights.
Massey and Dishman, who worked as sales representatives in a BellSouth call center, claim that their supervisors subjected them to greater scrutiny and disciplined them for taking FMLA leave. Massey and Dishman further claim that the increased scrutiny and discipline ultimately led to their terminations. Massey took approved FMLA leave for a variety of reasons between 2006 and April 2010 (more than six months before her termination). Dishman took several days of approved FMLA leave between December 2009 and March 2010 (also more than six months before her termination).
To support their claims, both Massey and Dishman assert that their direct supervisor, Kaelin, informed them that BellSouth officers were looking for reasons to terminate their employment because they had utilized FMLA leave. Massey testified: “it was actually told to me by my supervisor [Kaelin], that [Borders, another supervisor] wanted her to listen to me until she got something on me to fire me because I take FMLA.” Dishman allegedly heard a similar comment. Dishman testified that Kaelin pulled her aside and said, “whatever you do, don’t miss any more days . . . You know that they’re trying to get rid of you, because you use FMLA . . . I’m supposed to be listening to every single one of your calls right now.”
By the time they were terminated, both Massey and Dishman had received negative performance reviews and accumulated substantial disciplinary records. Between February 2009 and October 2010, Massey received ten warnings for violating company policy; in August 2010 she was suspended for one day for failing to authenticate a customer during a phone call. Massey was ultimately terminated for alleged misconduct in October 2010. Dishman had a similar record. Between January 2008 and August 2010, she also received ten warnings for various violations and was suspended in August 2010 for improperly staking promotions to make additional sales. Dishman was fired in September 2010 for misconduct—sales integrity.
Looking For Reasons To Fire Reflects Retaliation
BellSouth filed a motion with the trial court seeking dismissal of Massey’s and Dishman’s retaliatory discharge claims. The trial court denied BellSouth’s motion for dismissal and ruled that the former employees were entitled to proceed to a jury trial on their retaliatory discharge claims.
In denying BellSouth’s motion for dismissal, the trial court focused on Massey’s and Dishman’s allegations that BellSouth subjected them both to increased scrutiny and discipline that ultimately led to their terminations. The trial court explained that “evidence of increased scrutiny leading to discipline and termination can support a reasonable inference of a retaliatory motive.” In applying this principle, the trial court observed that the former employees “were both warned by their direct supervisor that the employer increased monitoring to find reasons to fire them” and that “this same supervisor disciplined both of them multiple times after they took FMLA leave.” Although someone else fired Massey and Dishman for alleged violations of company policy, the trial court pointed out, the person who fired them “considered the records both had accumulated in making the decision.” Based on this evidence, the trial court determined that “if a jury believes Kaelin and Borders told [Massey and Dishman] they were looking for reasons to fire them for using FMLA leave, it could also reasonably conclude that BellSouth’s proffered reasons for discipline and termination were pretextual.”
Sumter County Employee Rights Lawyers
Based in Ocala, Florida and representing workers throughout Florida, our employee rights attorneys in Sumter County, Florida have litigated retaliation cases in Florida courts for more than twenty years. If you have been retaliated against for exercising your employee rights or have questions about your protection from retaliation for exercising your employee rights, please contact our office for a free consultation with our employee rights lawyers in Sumter County, Florida. Our employee rights law firm takes retaliation cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.
