- A regional director at Temple University Health System who raised many complaints about race bias, and who was fired less than two months after returning from Family and Medical Leave Act (FMLA) leave, was unable to prove that her firing was illegal; she was terminated for failing to properly audit the work of an employee who mishandled a large amount of money (Gress v. Temple University Health System, No. 18-3085 (3rd Cir. Sept. 19, 2019)).
- The employee, Lorraine Gress, complained that her supervisor made racially insensitive comments, including referring to African American employees by a racial slur and using an anti-gay slur. The complaints were investigated and dealt with by HR. While Gress was out on a surgery-related FMLA leave, a financial discrepancy was discovered. An employee Gress supervised was terminated due to $130,000 that went missing over a three-year period, and Gress was ultimately terminated for failing to properly supervise the employee and interfering with the subsequent investigation.
- The 3rd U.S. Circuit Court of Appeals upheld a district court's ruling of summary judgment in favor of the employer, stating that "being the supervisor responsible for the loss of $130,000 is a sufficient ground for termination when the auditing function was admittedly deficient."
As this case illustrates, being on a protected leave does not insulate an employee from legitimate discipline, up to and including termination. However, employers must be careful to establish (and document) legitimate reasons for discipline so that the timing does not appear to suggest illegal bias.
This case is also a good reminder that insensitive comments on the basis of race or other protected categories are never a good idea in the workplace, even if they are ultimately shown to be irrelevant to a particular employment action.
Oftentimes, comments alone are enough to help move an employee's claim forward. In one recent case, a supervisor's remark about a lesbian employee's "gaydar" helped support the employee's bias claim. Another employee, who was allegedly called a "stupid Egyptian," was allowed to proceed to a jury trial. And two Italian doctors who were allegedly told to "go back to Italy" were allowed to proceed with their disparate treatment claims.
Employers should be clear that bias and harassment of any type will not be tolerated, and policies and culture should support the principles of inclusion, respect and fairness. Additionally, supervisors should be regularly and thoroughly trained on legal compliance and workplace best practices. Experts have said that training must resonate with employees, and that training shortfalls can be particularly problematic at the management level.