Was it about cursing, or his disability?

by on January 23, 2012 · 10 Comments POSTED IN: HR Cafe
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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.

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Did the company succeed in getting Marlin’s lawsuit thrown out?

The Decision…
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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10 Comments on This Post

  1. Dilbert SPHR
    January 23, 2012 - 6:23 pm

    Knowing the courts it’s a toss up.  As a reasonable person with mounds of HR experience, I’d say the court dismissed.  However, there isn’t a lot of info here like what were past practices with insubordination?  Was there a CBU involved?  Over all my final answer is case dismissed… but judges disagree with me all the time. 🙂  

  2. Dilbert SPHR
    January 23, 2012 - 6:23 pm

    Knowing the courts it’s a toss up.  As a reasonable person with mounds of HR experience, I’d say the court dismissed.  However, there isn’t a lot of info here like what were past practices with insubordination?  Was there a CBU involved?  Over all my final answer is case dismissed… but judges disagree with me all the time. 🙂  

  3. Debra Ingram
    January 26, 2012 - 9:16 am

    What was the outcome?

  4. Debra Ingram
    January 26, 2012 - 9:16 am

    What was the outcome?

  5. Mgarriot
    January 27, 2012 - 5:51 pm

    When is the answer going to be posted? It’s no longer 1/23.

  6. Mgarriot
    January 27, 2012 - 5:51 pm

    When is the answer going to be posted? It’s no longer 1/23.

  7. Dlowell3
    February 3, 2012 - 4:49 pm

    What is the answer? I would think that it was dismissed. His behavior had nothing to do with his disability.

  8. Dlowell3
    February 3, 2012 - 4:49 pm

    What is the answer? I would think that it was dismissed. His behavior had nothing to do with his disability.

  9. Guest5674
    February 6, 2012 - 1:40 pm

    Little disappointed this topic never followed up.

  10. Guest5674
    February 6, 2012 - 1:40 pm

    Little disappointed this topic never followed up.

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