Yesterday, a unanimous Sixth Circuit affirmed a Columbus nursing home’s summary judgment on claims of retaliatory discharge on the grounds that the plaintiff employee had failed to produce evidence of pretext for each of the employer’s stated explanations for terminating her employment. Bashaw v. Majestic Care of Whitehall LLC, No. 24-3292 (6th Cir. 3/5/25). The Court found that the employer was justified to terminate her for secretly recording workplace conversations which included confidential patient information because it undermined workplace trust and created potential patient liability. Further, she failed to prove that any similarly situated employee had comparably poor attendance. Finally, she similarly failed to prove that it was pretextual to terminate her employment when she had told the HR Director that she was already looking for another job. Accordingly, even if she proved a prima facie case of retaliatory discharge for engaging in protected activities in opposing allegedly illegal conduct towards employees and patients, her claims were dismissed because the employer articulated at least one non-discriminatory/retaliatory reason for terminating her employment which she failed to prove was mere pretext for illegal retaliation.
According to the Court’s opinion, the plaintiff was hired in
November 2021 as the Director of Social Services and was terminated after four
months. In the last six weeks of her
employment, she was late for the daily morning meeting 11 times and missed 8.5 days without prior
authorization. She was unclear with Mt. Carmel
hospital on February 25 about whether
the nursing home would take back a patient with significant psychological
issues, which lead to threats of a government investigation. She complained
about patient care and on March 1 complained to the HR Director about the
Executive Director’s insensitive, unprofessional and potentially discriminatory
statements and actions towards staff and claimed that she was secretly taping
workplace conversations in order to gather evidence. (There is no indication that she was
successful). She also claimed that she
and other directors were looking for another job and intended to resign if he
was not replaced.
In the meantime, the Executive Director had taken steps to
clarify who had the authority to refuse a patient admission and had begun
preparing a disciplinary action against the plaintiff concerning her
attendance. However, when he went to meet with her on
March 1, she had already left work early, again without authorization. The HR
Director had already escalated the issue to the regional director, who began
investigating the plaintiff’s concerns. On March 2, the plaintiff had a heated
confrontation with the Executive Director during the morning meeting about the
patient and left the unfinished meeting and work, again without
authorization. The Executive Director
then involved the VP of HR, who joined the existing investigation. When the plaintiff was interviewed, she again
indicated that she had been secretly recording workplace conversations in
attempting to get evidence against the Executive Director. The investigation failed to substantiate her
allegations and she was fired a week later.
Litigation ensued and the employer was granted summary judgment on all claims.
The Court of Appeals held that she had to prove that all of
the employer’s stated reasons for terminating her employment were pretextual in
order to survive summary judgment.
Although it agreed that there were factual disputes about the
misunderstanding with Mt. Carmel, it concluded that she failed to prove that
employer lacked a basis for terminating her for (1) secretly recording workplace
conversations that included confidential patient information; (2) poor
attendance and (3) seeking another job with the intention to resign because she
did not want to return to work.
Even if courts find some reasons
pretextual, if “at least one other is not, the defendant employer is still
entitled to summary judgment.” . . . . In other words, if the employer proffers a
single independent nondiscriminatory reason for its conduct, that can defeat a
retaliation claim.
The Court rejected her argument that she could not be legally
fired for secretly recording workplace conversations because it was not illegal
and the employer had not prohibited it in any policy. The HR VP found this to undermine trust in
the workplace and created a risk of liability to employer because each of the
three recordings made included confidential patient information. “But the lack of an official policy or law
prohibiting the behavior does not itself demonstrate pretext . . . And an employer may terminate an
employee whose actions undermine the employer’s trust.” In addition, employers “may terminate an
employee for creating legal risk for the company,” which included potential exposure
of protected health information without the patient’s informed consent.
The Court also rejected her argument that he attendance
could not have motivated her termination because on March 1, the Executive
Director only intended to warn her.
However, the also walked out early on March 1 and 2. Further, she failed to produce evidence that
any similarly situated employees had comparatively poor attendance. She had to do more than identify a comparable
co-worker. Moreover, it was not the
Executive Director’s decision to terminate her; it was the HR VP’s decision and
she was not required to follow his recommendation of disciplinary action.
Finally, the Court agreed that the employer had shown an honest
belief that the plaintiff did not want to return to work based on her comments
to the HR Director about seeking another job and her statements to the VP that
she did not feel comfortable working in the building because it was a toxic environment
and she felt gaslighted. It was
apparently irrelevant that she also told the VP (on a recorded call) that she
loved her job and the residents.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
