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Timing is usually everything in wrongful termination cases. Take, for example, the recent First Circuit Court of Appeals decision in Kelley v. Correctional Medical Services, Inc. In that case, a supervisor requested the dismissal of an employee for a clear case of insubordination. The employer agreed and summarily dismissed the employee. Was the dismissal of this at-will employee permissible, or, alternatively, was it the culmination of unlawful discrimination and harassment? Reversing the lower court decision, the First Circuit decided that the lawfulness of this termination involved a factual issue for a jury to decide. The supervisor had a long history of making disparaging comments related to the employee's disability just prior to the isolated instance of insubordination.
The plaintiff-employee in Kelley worked as a prison nurse. She became disabled after seriously injuring her hip while horseback riding. Following a lengthy leave of absence for hip surgery, she returned to work with medical restrictions, limiting her hours and requiring the use of a cane.
The plaintiff alleged that following her accident, her supervisor accused her of lying about the extent of her injury and prohibited her from using a cane until she could provide a medical note. The supervisor also demanded that the plaintiff work full-time and criticized her job performance in a manner that the plaintiff had not previously experienced. At one point, a member of management told the plaintiff that her supervisor "wanted her gone."
Matters came to a head between the plaintiff and her supervisor during a shift when there was a shortage of available nurses. The supervisor assigned the plaintiff to a post that would have required her to respond to medical emergencies throughout the prison. When she learned of the assignment, she refused, citing her medical restrictions. The plaintiff also refused to perform another aspect of the assignment, counting narcotics, not because of her medical restrictions, but because she claimed it had already been completed. The supervisor called another nurse on duty who agreed to perform the two assignments, and then called security and asked them to remove the plaintiff from the property. Right after that pivotal decision, the supervisor double-checked the personnel manual to confirm that insubordination was a terminable offense. The employer then dismissed the plaintiff for insubordination.
The plaintiff sued her employer claiming that she had been discharged in retaliation for her requests for an accommodation. The lower court dismissed the claim finding that the plaintiff failed to produce evidence suggesting that the employer's stated reason for termination, insubordination based on her refusal to count narcotics, was pre-textual. On appeal, the First Circuit reversed, finding that a jury must ultimately weigh whether the reason for the termination was insubordination or, rather, a "disingenuous overreaction to justify dismissal of an annoying employee who asserted her rights under the [Americans with Disabilities Act.]"
The Kelley decision is a good reminder that even in cases where an employer has evidence of a legitimate, non-discriminatory reason for a termination, such as insubordination, a terminated employee may still have a claim for retaliation. Retaliation claims have increased dramatically in the last few years. Before discharging or disciplining an employee, employers should carefully review the employee's recent employment history to ensure that there is no evidence to suggest discriminatory animus and to confirm that the discharge or discipline is fair and reasonable. As cautioned by the Kelley court, "while the ADA is not a license for insubordination at the workplace, the employer cannot invoke the specter of insubordination in order to mask retaliation for requesting an accommodation."
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