‘Harsh’ Termination Not Proof of Disability Discrimination

By Joanne Deschenaux Mar 12, 2018
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Even if a cable company was "harsh" or "unfair" when it fired a customer service agent, the employee could not proceed to trial on her disability bias claim because she failed to show any connection between the termination and her disability, the California Court of Appeal ruled.

"The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason," the court said.

The plaintiff began working as a customer service agent for Time Warner Cable (TWC) in 1998. She collected payments from customers, issued cable equipment and dealt with other customer service matters. On four occasions between 2009 and 2012, she took medical or family leave.

[SHRM members-only toolkit: Managing Medical Leave in California]

A few days after returning to work from her first leave in 2009, a manager gave her a verbal warning because her cash drawer was $30 short. A few weeks later, a manager gave her a written warning because her cash drawer was $950 out of balance and she had failed to follow proper cash-handling procedures. In 2012, the plaintiff left the door of the safe in the office's cash room open overnight, and a manager issued her a final written warning.

In 2013, TWC performed an audit that suggested that some employees had been falsifying customer satisfaction surveys. Customers responded to surveys either online or at computer kiosks located at TWC service centers. Each customer service agent was required to receive at least five survey responses per month, and employees received bonuses and pay increases if they were highly rated. The audit revealed that, in the case of the plaintiff and 97 other employees, several survey responses had been entered in quick succession, only one or two minutes apart from one another. The company reasoned that it was unlikely that different customers would enter survey responses for the same employee virtually at the same time and suspected that the employees were entering false survey responses themselves.

As part of its investigation into the questionable survey results, TWC interviewed the plaintiff. She admitted filling in the survey responses herself but claimed that she had not falsified data. She said that the computer kiosk where customers at her location could submit surveys was frequently broken. At these times, she would print out a copy of the survey for the customer to fill in. The customer would then hand the completed survey back to her, and she would transcribe the survey results into a computer. She would then shred the customer's hard copy of the survey. The plaintiff claimed she was not aware of any company policy forbidding her from doing what she did.

Upon completing its investigation, TWC concluded that 92 of the 98 employees, including the plaintiff, had acted improperly. Fifty-three employees with no prior disciplinary record received a written warning, and 20 employees who already had a written warning on their file received a final warning. The plaintiff and 18 other employees who had already received final warnings were fired.

In November 2014, the plaintiff filed a complaint against TWC alleging disability discrimination under the California Fair Employment and Housing Act (FEHA), among other claims. She alleged that TWC's explanation for her termination was a pretext and that the company fired her because of her recurrent medical leaves. The trial court granted summary judgment in favor of TWC, dismissing the complaint before trial, and the plaintiff appealed.

Three-Stage Test

In cases alleging disability bias under FEHA, California courts have adopted the three-stage test established in federal courts. The first stage requires the plaintiff to show that he or she:

  • Has a disability.
  • Is otherwise qualified to do the job.
  • Was subjected to adverse employment action because of his or her disability.

If the plaintiff can meet this burden, the employer must produce evidence that it took its action for a legitimate, nondiscriminatory reason. If the employer does so, the plaintiff can attack the employer's proffered reason as a pretext for discrimination or offer any other evidence of discriminatory motive.

The appellate court assumed that the parties met steps one and two of this test and focused on step three: Did the plaintiff show that TWC's cited reasons for firing her were a pretext for discrimination?

The plaintiff failed to do this, the court concluded. She produced no evidence to counter TWC's claim that it conducted its employee audit in a neutral manner—and all available evidence indicated that TWC disciplined its employees according to a fixed formula based on the number of prior warnings those employees had received.

The plaintiff alleged that TWC's justification for terminating her was a sham because TWC had no evidence that she falsified any customer surveys and she denied having done so. The company's director of human resources had suggested that TWC investigate further to determine whether the plaintiff's claims were true, a step the company ultimately did not take.

The appellate court concluded that although TWC's decision to terminate the plaintiff may have been harsh or unfair, FEHA "is not a shield against harsh treatment at the workplace." The court affirmed the trial court order dismissing the disability bias claim.

Archibold v. Time Warner Cable, Calif. Ct. App., No. B277336 (March 1, 2018).

Professional Pointer: The employer in this case treated employees with disciplinary records in the same manner that it treated the plaintiff. This evenhanded conduct helped it avoid a lengthy and expensive trial on the plaintiff's claim.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

 

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