Based on the facts presented below, how do you think the court ruled on this employment law case?
“You’re firing me because I used the f-word two whole times?” employee Marlin Bergstrom asked incredulously. “Do you have any idea how many times people say that word every day in this plant?”
“I have a pretty good idea,” supervisor Ted Yost replied. “But you used it while talking to me, and you told Rich Matthews to f-off. That amounts to gross misconduct, and we don’t have to tolerate it, even from an old hand like you.”
“First off, I didn’t tell Rich to f-off,” Marlin said. “I told him I didn’t give a f…. Not the same thing.”
“Second, if you remember our conversation so well, you also remember telling me guys didn’t like me working short weeks to rest up from my diabetes and liver problems,” Marlin went on. “It sounds like you’re sorry you agreed to it.”
A foul mouth
“It has been causing some problems,” Ted admitted. “But that’s not the point. The point is that you were insubordinate in your conversation with me, and your foul mouth started a big argument with Rich over nothing. I’m not going back on this.”
Later, Marlin sued for disability discrimination, claiming he was fired not because of his conduct but because supervisor Ted no longer wanted to accommodate him.
Did the company succeed in getting Marlin’s lawsuit thrown out?
No, the company couldn’t get Marlin’s lawsuit thrown out. A federal appeals court said his disability discrimination case was strong enough to go to a jury.
The court said supervisor Ted’s stated reason for firing Marlin – his bad language – looked like a pretext in the context of a rough-and-tumble workplace where disagreements and colorful language were frequent. Particularly damaging to Ted was the fact that he cited other workers’ displeasure with the accommodation he’d offered Marlin for his diabetes and liver problems. This statement, the court said, could support a jury finding that Ted fired Marlin because he wanted to end the accommodation.
Don’t single anyone out
When you take disciplinary action against an employee – especially one who is protected by anti-discrimination law – make sure you’re not singling the person out. If you’ve disciplined other employees for similar infractions, or are certain you would do so, you can probably go ahead. But if you have even a smidgen of doubt that you’re being equitable, check with HR or upper management first.
Cite: Carter v. Pathfinder Energy Services, No. 10-8112, 10th Cir., 11/3/2011. Fictionalized for dramatic effect.
Apologies for the delay in updating this story.
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