A considerable variety of employment law cases, especially when the employee’s claims relate to discrimination or retaliation, can succeed or fail based upon which side (employee or employer) presents a stronger case about whether the employer’s adverse action was legitimate or merely a pretext for engaging in illegal conduct. Many times, this may boil down to other employees working for the same employer and whether or not they qualify as “similarly situated” in relation to the employee who has sued. The case of a nurse from Florida allegedly fired for sleeping on the job offers a real-life example of this.
The nurse, in the late summer of 2013, took FMLA leave while experiencing a bout of pneumonia. Ten days after she returned to work, the nurse’s supervisor allegedly witnessed her sleeping at the nurses’ station. Allegedly, a video monitor of the nurses’ station captured the nurse sleeping intermittently during her shift.
Shortly after the incident, the hospital fired the nurse. The nurse sued, alleging that the termination was really not about whether or not she may have dozed off for a few minutes but was retaliation for her taking FMLA leave. The employer pursued and obtained summary judgment in its favor, and the nurse fought that ruling on appeal.
In a claim like this, the first obligation falls on the employee, who must demonstrate that she has a “prima facie case of discriminatory retaliation.” In this nurse’s case, the trial court determined that the nurse had cleared this hurdle, and the appeals court did not revisit that aspect of the case.
After a suing employee meets this prima facie requirement, the obligation moves to the employer, who must provide the court with a legitimate, non-discriminatory basis for the action it took. The hospital had such a justification here; the nurse was sleeping on the job, and sleeping on the job was an offense punishable by termination at that institution.
At that point, the burden moves back to the employee, since the law requires her to refute the employer’s claims of legitimate action and demonstrate that the employer actually acted with improper intent (with the stated legitimate reason being a mere pretext). One way to do this is to prove to the court that the employer had other employees who previously engaged in conduct that was the same or similar but received lesser punishments from the employer. This shows the court the employer wasn’t just following its own internal rules when it decided to fire you.
Employers are allowed to make “business” decisions
The key to winning with this strategy is to find a fellow employee who truly is “similarly situated.” In this nurse’s case, that was her shortcoming. She had a medical technician who failed to supervise an at-risk child properly. What he did, the nurse argued, was far worse yet received a lesser sanction. That didn’t work because the nurse never alleged that his conduct was the same or similar to hers. Arguments asserting that another employee’s conduct was not similar but was much worse often fail because, as the 11th Circuit stated in this ruling, “determinations of the severity of different types of workplace misconduct and how best to deal with them are” business decisions regarding which courts will defer to employers’ judgments.
This nurse had one co-worker who had fallen asleep on the job, but that co-worker was a medical technologist, rather than a nurse. The technologist also provided the employer with a doctor’s note giving a medical reason for falling asleep. These two facts were critical in leading to the determination that the technologist and the plaintiff weren’t sufficiently similarly situated. Without a similarly situated employee, the nurse had no proof of pretext, so her case failed.
In these types of employment cases, the outcome may often come down to which side does a stronger job of presenting its position regarding whether other employees are (or are not) similarly situated to the plaintiff. In other words, it comes down to knowing the facts, knowing the law, and knowing how to present them to the court. The diligent Georgia FMLA attorneys at Mays & Kerr have a lengthy track record of helping employers and employees involved in FMLA retaliation cases pursue outcomes that meet their needs, including putting on a strong case at trial.
To speak with one of our lawyers about your case, call 1-877-986-5529.
More blog posts:
Lack of ‘Similarly Situated’ Males Dooms Tennessee Professor’s Sex Discrimination Case, Atlanta Employment Attorneys Blog, May 26, 2017
Sixth Circuit Ruling Raises Warning to Tennessee Employers When it Comes to Handing out Disparate Discipline, Atlanta Employment Attorneys Blog, Feb. 3, 2016