Monthly Archives: August 2013

Termination of 76 Year Old Told He “Needed to Hang Up His Superman Cape” Found Wrongful

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super-hero-red-cape-mdIt’s a bird! It’s a plane! No, it’s … a 76 year old security guard …


“Superman” Carylyn Johnson (more about that later) was a security guard for Securitas Security Services.  His duties included providing on-site security guard services at various locations.  Hired at the spry age of 70, Johnson’s employment record was virtually unblemished from when he was hired in 2004 until he was terminated in 2009 – he had only received one oral warning for sleeping on the job.

The Termination

When he was making his rounds at approximately 5:30 a.m. in the morning, and apparently in the 20th hour of his shift, Mr. Johnson collided with a parked truck.  For reasons discussed below, he was soon after terminated.

This opinion, issued just two days ago from the 8th Circuit Court of Appeals, details the circumstances Mr. Johnson’s Age Discrimination in Employment Act (ADEA) and Missouri law claim that Securitas Security Services fired him because of his age.

Johnson cited evidence that, prior to his termination, a Securitas supervisor had;

  1. called him “too old to be working” (tip – don’t say that);
  2. told him to “hang up his superman cape” and that he needed to retire (tip – again, not a good idea); and
  3. compared 76 year old Johnson with the supervisor’s 86 year-old father, who was no longer working (again – not a good idea).

After Johnson hit the truck at 5:30 in the morning, he tried to call his supervisor and claimed he couldn’t reach him because of bad cell phone reception.  He later got in touch with his supervisor at 7:00 a.m. and headed home.  He participated in a subsequent investigation, gave a blood test, and spoke with the human resources director.  Three days later he was terminated.

Johnson was terminated three days after the accident.  The reasons given were violation of company policy — by failing to follow protocol for reporting an accident — and by leaving his shift one hour early at 7:00 a.m. instead of 8:00 a.m.

After the trial court disposed of Johnson’s case by granting the employer summary judgment (pretrial dismissal), the Court of Appeals reversed the trial court’s findings, saying that Johnson’s case should proceed to a jury.  Ouch.

Why the Employer Got Nailed

Here’s why:

  1. The supervisor’s comments.  While probably made in jest, comments like these are just a breeding ground of uncertainty when they’re later tied to a protected class status, which gets employment claims like these in front of juries.  Bad for employers.
  2. Evidence that two other employees had been in work-related accidents and were not terminated made Johnson’s discipline look harsher than that of younger employees.
  3. A legitimate dispute and question over whether his shift actually ended at 8:00 a.m., or whether it was 7:00 a.m., as he claimed.

Final thoughts:

Good, proactive discipline and termination decisions must be made within a context.  Within that context, you should examine how discipline and/or termination of other employees for similar infractions are handled.

In conjunction with that, review the basis for the discipline.  Does the employee/former employee have any argument that other employees were, or would have been, treated differently? If so, assess the risk.  Make your decisions from a position of strength.

U. Iowa Dean Who Botched Investigation on Sexual Assault Charge Not Discriminated Against

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The facts of this case have been in the media time and again, in different stages, under different circumstances, and in different venues.  It all arises from a terrible 2007 sexual assault perpetrated by two members of the University of Iowa football team against a female student-athlete.  It teaches us a valuable lesson about workplace investigations.


In this chapter, Phillip E. Jones, who had been the Dean of Students and Vice President of Student Services at the University of Iowa, filed suit after he was terminated from his employment by University of Iowa President Sally Mason in 2008.  The University’s decision was based in part on a report from the Stolar Partnership, a law firm retained by the University to investigate the University’s response to a sexual assault of a student–athlete by other student athletes.

The Workplace Investigation

The investigation showed Jones had dropped the ball in many particulars, in what amounted to a complete failure to follow up on the complaint.  Some particular examples include: (1) not following up on any of the reports or information he received from other University personnel, or the investigators, by claiming he “hadn’t received a formal complaint;” and (2) by alleging that he did not even know who the victim or her mother were when they followed up with him on the (lack of) investigation on his end.

After he was terminated because the President Sally Mason indicated she had lost faith in him, Jones sued the University of Iowa, Mason, the Regents, and Stolar for invasion of privacy, defamation, wrongful termination, intentional interference with an employment contract, intentional interference with prospective business advantages, due process violations, and civil rights violations.

The case is not terribly interesting for Jones’ claims — he didn’t have any that survived — but it is an interesting read because it shows some of the workings of a full scale external workplace investigation conducted by a law firm on the University’s behalf.

In a unanimous decision of 36 pages, the Iowa Supreme Court noted Jones’ myriad failures in his failure to investigate the sexual assault, and the Court systematically disposed of each of his claims.

Final Thoughts

I’m a big believer in employer investigations, as troublesome and unwieldy as they can be, and the deference the Court gives to the investigators in this decision is a prime reason why.  The investigation and its findings play a central role in this decision, and the workplace investigation has the effect of substantiating the University’s decision in terminating the Plaintiff.

Remember, when the going gets tough, a good, thorough investigation can oftentimes be your best protection if any disciplinary decision is later challenged.

Don’t Tell Employer “Take This Proposal and Shove it up Your ***” During Mediation

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Take this Offer and Shove It!This happened at the end of July, in the Seventh Circuit Court of Appeals in an opinion authored by acclaimed jurist Judge Easterbrook, but I just had a chance to finally read it.  Perhaps you’ve heard about it on the radio or news.

The Pitch

The opinion, in a rare turn for Court of Appeals opinions, gets the reader hooked right out of the box:

After working at A.B. Data for four months, Michael Benes charged the firm with sex discrimination. The EEOC arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room. The intermediary shuffles between rooms. Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise. But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Benes stalked out, leaving the employer’s representatives shaken. Within an hour A.B. Data accepted Benes’s counterproposal: it fired him. He replied with this suit under 42 U.S.C. §2000e-3(a), the anti-retaliation pro- vision of Title VII of the Civil Rights Act of 1964.

This decision raises an issue that should make all employers sit up and take notice – can an employer still discipline an employee after the employee has filed a civil rights or other employment claim?

What Are You Allowed to do When an Employee Makes a Discrimination Complaint?

Legally, just because an employee files a discrimination charge or makes an internal complaint about discrimination, this does not make the employee immune to discipline.  Practically, though, employees can (and often will) raise a stink about any discipline they receive after a complaint, and simply add a retaliation charge to the mix.

The law defines retaliation as any action that might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Here, though, the Seventh Circuit noted that, the prospect of termination for telling an employer take its proposal and “shove it up your ***”  would not discourage a reasonable worker from making a charge of discrimination or participating in the EEOC’s investigation.

Put in other words, the Court referenced another of its decisions, that participating in activity protected by Title VII of the Civil Rights Act does not insulate an employee from being discharged “for conduct that, if it occurred outside an investigation, would warrant termination.”

I suggest applying what I call the 90% rule to this scenario.  For example, on the advice of one wise lawyer with whom I practice, I only make objections during a jury trial if I’m 90% sure the judge will grant or sustain the objection — I don’t want the jury to think I’m being obstructive.

In this scenario, if you want to discipline or terminate an employee who has participated in conduct protected under the Civil Rights Act, you better be 90% sure that you can justify the discipline with employees who have been similarly disciplined, a clearly defined workplace policy, or other evidence.

At least you know what to do if your employee does this …

In Iowa, It’s Workplace Misconduct to Sleep With Your Boss’s Spouse

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On Tuesday, the Iowa Court of Appeals came down with a fairly common sense proclamation:  don’t have an affair with your boss’s spouse.

Or, more specifically, if you have an affair with your boss’s spouse, and you are a police officer, this will constitute misconduct, sufficient enough to warrant your discipline or termination.  It’s a short opinion at seven pages and a quick read.

But, what’s the point, you ask?

Why Misconduct Matters

Good question.  Misconduct isn’t always easy to define, and employers aren’t always “right” in the eyes of the law when they try to identify it.

Sometimes Often, an employer’s termination for what the employer believes is “misconduct” is the beginning of a long and tortuous road to some form of wrongful termination lawsuit.

This appeal was based, in part, on the employee’s argument that his affair with his boss’s wife was not misconduct.  I’ll admit, at first blush, this argument sounds boneheaded.

The employee noted, however, many other officers in the department had been parties to affairs but were not disciplined.

The employer argued this case was different.  The terminated employee’s affair was not just with anyone, but with his boss’s spouse.

The Court considered the supervisor/subordinate relationship between the two.  The affair upset the trust and cohesiveness required with police departments.  The employee’s peers may not want to work with him, the Court reasoned because the boss might target him for dangerous assignments.  Or, the boss may not be able to be fair with work assignments, discipline, and so on.

It’s a pretty good argument and makes perfect sense, really.

The next time you have a misconduct issue, especially if sufficient to warrant discipline or termination, ask yourself these questions:

  1. Has this conduct been sufficient to warrant discipline/termination in other situations with other employees?
  2. Does the employee’s misconduct implicate some form of legally “protected conduct?” (I’ll take this one up in a companion posting).

Stay proactive.