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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Classic Employer Retaliatory Discharge: Failing To Get Fired Employee’s Side Of The Story

Compliance with employment laws and regulations, labor laws concept. Laws aim to protect workers from discrimination, harassment, unsafe working conditions and unfair treatment.

Having represented wrongful termination victims for more than two decades, our wrongful termination lawyers in Citrus County, Florida know that discriminatory and retaliatory discharge cases frequently have common facts. One such common fact is the employer’s failure to get the terminated employee’s side of the story before firing the employee. When an employer has a discriminatory or retaliatory motive to pull the trigger and terminate the employee, the employer often seizes upon allegations regarding the terminated employee’s behavior to justify the termination decision without giving the terminated employee an opportunity to respond to the allegations. In other words, victims of a discriminatory or retaliation discharge are often fired based on one-sided information. In some cases, employers even brazenly claim that they “investigated” the allegations before making the termination decision, even though the “investigation” did not include actually speaking with the terminated employee about the allegations.

In this article, our wrongful termination lawyers in Citrus County, Florida explain how the decision in Smothers v. Solvay Chemicals, Inc., 740 F.3d 530 (10th Cir. 2014) shows how an employer’s failure to get an employee’s side of the story before terminating the employee is evidence of the employer’s discriminatory or retaliatory motive.

Employment Discrimination Lawsuit

In that case, a man named Smothers brought an employment discrimination case against his former employer, Solvay Chemicals, Inc. (“Solvay”), pursuant to the Family Medical Leave Act (“FMLA”). Under the FMLA, qualifying employees are entitled to take up to twelve weeks of unpaid leave for a serious health condition. The FMLA makes it unlawful for an employer to retaliate against an employee for taking FMLA leave. Smothers claims that Solvay fired him in retaliation for taking leave under the FMLA.

From 1990 until August 2008, Smothers worked for Solvay as a surface maintenance mechanic at Solvay’s mine. As a result of a neck injury, Smothers developed a degenerative disk disease in his spine. His medical condition required three surgeries to his neck between 1999 and 2004, as well as numerous other medical procedures. This caused severe ongoing pain, including chronic neck pain, severe migraine headaches, and lower back problems. At times the pain was so severe that Smothers “would basically be unable to work” without pain treatments.

During his employment with Solvay, Smothers sought and was granted FMLA leave to intermittent absences related to his health condition. Smothers claims that managers and co-workers complained about his FMLA-protected absences. For example, Smothers alleges that a supervisor pressured him to change from his graveyard shift to a day shift, where a larger staff could more easily absorb his absences without requiring the company to incur overtime costs. This shift change would have reduced Smothers’ income by about $7,000 a year. Smothers also claims that he was given a negative rating in a performance evaluation because of his absenteeism.

Fired Based On One-Sided Information

On August 19, 2008, Smothers approached an acid tank containing hydrochloric acid that was not operating and saw that a damages suction flange or “spool piece” connected to the acid pump had caused the problem. Smothers prepared to remove the spool piece when a co-worker, Mahaffey, suggested that Smothers should wait for a line break permit. A “line break permit” is a Solvay safety policy requiring employees to obtain formal clearance before “breaking”—i.e., disconnecting or otherwise opening—a line containing any chemical. Smothers disagreed, saying the line break permit was not required because the line was already broken. Smothers then removed the broken spool piece and took it to the maintenance shop to repair it.

When Smothers went to the maintenance shop, Mahaffey informed a supervisor about the disagreement with Smothers regarding the necessity of a line break permit. Mahaffey then went to the maintenance shop and offered to assist, but Smothers refused his help. Mahaffey took offense and accused Smothers of hypocrisy because Smothers had previously reported other employees for safety violations. According to Solvay, Smothers told Mahaffey, “I don’t want your kind of help” and wanted to know if Mahaffey was going to follow him around the workplace to make sure that he did things right. Smothers described the interaction differently, asserting that Mahaffey provoked the argument and began yelling and ranting at him. After the scene in the maintenance shop, Smothers finished repairing the spool piece. Smothers then installed the repaired spool piece, a process that took about ten minutes.

Eight days later, Solvay fired Smothers. Solvay alleges that the termination decision was the product of a group decision made by six managers. Before making their decision, at least three decision-makers personally talked with Mahaffey about his argument with Smothers. No one from the decision-making group spoke with Smothers about his version of the argument. Five of the six decision-makers testified that the argument with Mahaffey weighed heavily in the group’s decision to fire Smothers. One decision-maker said that Smothers’ behavior demonstrated a “defiant attitude and hostile behavior” that warranted termination.

Insufficient Investigation

The trial court dismissed Smothers’ FMLA retaliation claim. On appeal, the U.S. Tenth Circuit Court of Appeals reversed the trial court’s decision and reinstated Smothers’ FMLA retaliation claim.

Unlike the reversed trial court, the Tenth Circuit observed that an employer’s “failure to conduct what appeared to be a fair investigation” before terminating an employee “may support an inference” that discrimination or retaliation was the real reason for the termination decision. In applying this principle, the appellate court observed that managers in the decision-making group said that Smothers was fired because his argument with Mahaffey showed the had been ‘defiant,’ ‘hostile,’ and “aggressive.’ ” The court of appeals noted, however, that Smothers “emphatically disputes these characterizations, and the same mangers acknowledge that their beliefs were based almost entirely on Mahaffey’s version of events.” In fact, the appellate court pointed out, “three decision-makers personally spoke with Mahaffey to hear his allegations regarding Smothers’ behavior,” but “none heard Smothers’ version of the encounter.”

“If Solvay’s decision-makers had allowed Smothers to respond to Mahaffey’s allegations before they fired him,” the Tenth Circuit reasoned, “we could perhaps accept that Solvay found Mr. Mahaffey’s version of events more credible.” As the decision-makers never gave Smothers such an opportunity, the appellate court found that the evidence “suggests that Solvay’s decision-makers deliberately prevented Smothers from defending his actions with respect to the quarrel and consequently reached their conclusions about what transpired based on one-sided information—then fired Smothers based largely on those tenuous conclusions.” Thus, the Tenth Circuit concluded that “a reasonable jury could find that Solvay’s investigation into the quarrel between Smothers and Mahaffey was not fair or adequate” and that retaliation in violation of the FMLA was the real reason for Smothers’ termination.

Citrus County Wrongful Discharge Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our wrongful termination attorneys in Citrus County, Florida have litigated wrongful termination cases in Florida courts for more than twenty years. If you have been wrongfully terminated or have questions about whether you have been wrongfully fired in violation of employment discrimination law, please contact our office for a free consultation with our wrongful termination lawyers in Citrus County, Florida. Our employee rights law firm takes wrongful termination 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.

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