Last week, I wrote about March Madness and the world of employment. In my sole subjective opinion, this year's winner is Dollar General. Oftentimes, I am asked what to do with problem employees when they are in a “protected class”, employees such as pregnant, disabled, on FMLA leave, suffered a workers' compensation injury, etc. The problems include, but certainly are not limited to, underperformance, violation(s) of company rules, regulations and policies, and abuse of leave. The answer: they can be treated as any other employee. But if you want to take an adverse employment action, there should be sufficient documentation to support that action, and employers should be prepared to defend a lawsuit if necessary.

A number of years ago, I was fortunate to be able to defend a lawsuit filed by the EEOC against my client alleging pregnancy discrimination. The basic facts: the employer hired the employee, she began work on a Monday, and within a day of her beginning work, she told her employer that she was pregnant. By the middle of her first week at work, it was apparent that she was not capable of performing the job she was hired to do, had a bad attitude in that she did not want to learn how to do the job, and the employer terminated her on Thursday. She filed an EEOC charge, and the EEOC brought a lawsuit on her behalf alleging pregnancy discrimination. Fortunately, the employer had sufficient records showing the deficiencies and her supervisor made a very good witness. The jury rendered a verdict in favor of the employer.

In the case of Kimberly Thomas v. Dolgencorp, LLC, (Dolgencorp is the official name of Dollar General) Dollar General (DG) faced a situation where Ms. Thomas, a store manager, was diagnosed with cancer and had a double mastectomy. She applied for and was granted FMLA leave. While still on FMLA leave, DG terminated her employment, relying on two mutually exclusive reasons: first, she worked her employees “off the clock”, and she took computer based learning (CBL) courses for her employees. Thomas filed sued, alleging violations of the ADA, interference with her FMLA rights in that she was not returned to work and FMLA retaliation since she was terminated while on leave. In support of her claim, she relied on the close temporal proximity between her leave and her termination, her denial that she falsified records (the CBL courses), some comments made by her supervisor and a single comparator who was investigated for falsifying the CBL learning records of a single employee. The District Court for the Middle District of Alabama, based in Montgomery, granted summary judgment in favor of DG on all counts, and the 11th Circuit affirmed. The court found that either offense was grounds for termination, her denial that she took the CBLs was mitigated by the fact that DG conducted an investigation “that yielded evidence upon which [DG] had a reasonable good-faith basis to believe that Thomas had falsified records”, her bosses comments were, “at best, stray remarks that do not create a material issue of fact concerning pretext”, the “temporal proximity between Thomas's FMLA leave and her termination does not by itself show pretext”, and the proposed comparator was not similarly situated because the same DG employee investigated both situations, and she did not find any evidence that the comparator had falsified records. The court noted that the reason DG discovered that Thomas had falsified records was that while she was on leave, her store was robbed, and during DG's investigation of the robbery, it learned that the employees on duty had not taken the required CBL course.

Practice pointers. Both cases above demonstrate that those employees in a “protected class” still must be able to perform their jobs and comply with the applicable rules, regulations and policies of the employer. However, there are risks involved when taking an adverse employment action against such an employee. In order to minimize exposure, it is imperative that employers train employees on a regular basis, including how to conduct investigations and discipline all employees, whether or not they are in a “protected class”. The training should be documented. Those who make decisions concerning adverse employment action must receive additional training to ensure compliance with any applicable law. Perhaps most importantly, those who make the decisions need to know when to review a particular situation with their attorney, such as when it is more likely that an EEOC charge and/or a lawsuit may be filed. Even though my client was able to successfully obtain a defense verdict, and DG was able to obtain summary judgment, the time, expense, and distractions were extremely burdensome.