Another “Everything but the Kitchen Sink” Lawsuit Won by Employer

February 29, 2016

The discharge of an employee, particularly if she is a member of more than one protected class, can lead to costly and time-consuming litigation, even if you do everything correctly. In a recent case, the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) found an employer had acted properly in dismissing such an employee.

The employee filed a lawsuit challenging her former employer’s adverse employment actions and claiming she was discriminated against because of her race, sex, and disability and retaliated against for filing a charge with the Equal Employment Opportunity Commission (EEOC). The trial court rejected all of her claims and dismissed her lawsuit before trial. The court of appeals examined each of her claims and agreed that they had no merit. Let’s look at what the employer did right and what’s important to courts in cases involving termination decisions.

Race Claims

Carmen Carothers, an African-American woman, was employed as an administrative assistant I/hearing officer by the Cook County Office of Transitional Administrator. Her job included serving as a hearing officer to adjudicate grievances by juvenile detainees. In June 2009, she was involved in an altercation with some juveniles that resulted in injuries to her hands. She took a leave of absence to recover.

Carothers’ healthcare provider restricted her from working with juveniles, which was a key component of her job. She eventually returned to work but was placed back on leave because of her job restrictions. She was ultimately discharged for having unauthorized absences and failing to follow her supervisor’s directive to provide certain documents needed to process her application for disability benefits.

Carothers claimed that two of her supervisors exhibited racial animus toward her based on three comments and incidents. First, she claimed that a supervisor stated to a group of employees that included several African Americans that he would “take them to the wood shed.” The court was underwhelmed by the wood shed comment, noting that the phrase doesn’t have racial undertones but rather refers to punishing or reprimanding someone.

Carothers also alleged that several years earlier, a supervisor commented that Malcom X was right that “black people should have their own stuff.” In rejecting that comment as evidence of racial animus, the court noted that the statement was allegedly made approximately three years before Carothers was discharged and therefore couldn’t have directly pointed to a discriminatory reason for her discharge.

Finally, Carothers claimed that the fact that a lower-level supervisor had been sued for race discrimination in her previous job indicated that she may have also discriminated against Carothers. The problem was, there was no evidence that the lower-level supervisor had anything to do with the decision to terminate Carothers’ employment.

Carothers alternatively claimed that she was a victim of race discrimination because she is a member of a protected class and suffered an adverse employment action (the discharge). Those are two of the four elements an employee must establish to move forward with a race discrimination claim. Although Carothers satisfied those elements, she wasn’t able to prove the other two: that she was performing her job to her employer’s expectations or that she was treated less favorably than similarly suited employees who aren’t African American. She had accrued excessive absences and was insubordinate to her supervisors shortly before her discharge, which showed she wasn’t meeting her employer’s expectations.

The court’s analysis demonstrates the importance of good documentation. HR or inside legal counsel must make sure supervisors and managers are trained to document performance issues. Supervisors are sometimes reluctant to document employee performance problems because they don’t want to sound negative or critical. However, failing to document performance issues sets up a “he said, she said” situation, which makes it more difficult to get a case dismissed before trial, meaning it’s more expensive to defend.

Carothers also failed to prove that she was treated more harshly than similarly situated non-African American employees. When determining whether employees are “similar,” courts will look to whether they shared the same supervisor, were subject to the same standards, and engaged in similar conduct. The general rule is that you should treat all employees the same when you’re considering disciplinary action. Unless you have an excellent reason to treat employees differently, don’t do it. If two employees have 10 unexcused absences and a similar disciplinary record, they should face the same level of discipline.

Gender Claims

Carothers also claimed that she was fired because of her gender, but she wasn’t able to point to any comments that were arguably discriminatory based on gender. Instead, she claimed that she was meeting her employer’s reasonable performance expectations but was treated less favorably than similarly suited male employees. Her claim was that she was meeting her employer’s reasonable performance expectations failed for the same reason the court rejected her race discrimination claims: She had a significant number of unexcused absences, and she refused to follow her supervisor’s directives to provide certain documentation.

The court also rejected her claim that two male employees were treated more favorably because they didn’t have to work with juveniles, a request she had made but was denied. Critical to the court’s decision was the fact that neither male employee’s job required that he have contact with juveniles. On the other hand, Carothers held a position requiring her to work with juveniles. Because of that difference, the court concluded that she wasn’t similarly situated to the two male comparators.

Disability Claims

The threshold question for a disability discrimination claim is whether the employee is, in fact, disabled. To be disabled under the Americans with Disabilities Act (ADA), an employee must have a mental or physical impairment that substantially limits her in a major life activity or a record of such an impairment. Given the amendments to the ADA, it’s typically not difficult for an employee to establish that she is disabled.

Here, the court found that Carothers didn’t have a disability even though she had a mental impairment. Work was the only major life activity she claimed she was limited in performing. She claimed that because of an anxiety disorder, she couldn’t interact with juvenile detainees at the detention center. The court found that wasn’t a substantial impairment of her ability to work because it was limited to a single job.

Retaliation Claims

Finally, Carothers claimed that she was retaliated against because she filed a worker’s compensation claim as well as a discrimination claim with the EEOC and the corresponding state fair employment agency. To establish a retaliation claim, an employee must show:

  1. She engaged in protected activity under a law (e.g., raising concerns about discrimination).
  2. She suffered a materially adverse employment action (e.g., demotion or termination).
  3. Her statutorily protected activity was the “but-for” cause of the adverse employment action.

The court found that Carothers met the first and second elements for proving her retaliation claim. However, it concluded that she hadn’t even remotely shown that her discharge was connected to her EEOC charge or worker’s comp claim.

Recent cases have set the causation standard in retaliation cases as a “but-for” test. In other words, an employee must show that the employer wouldn’t have fired (or taken another materially adverse employment action against) her if she hadn’t engaged in the protected activity. A retaliation claim will fail if the employer would have fired the employee for insubordination, even though her filing of an EEOC charge may have been a factor in the decision. The best practice, of course, is not to consider an employee’s administrative charge or verbal complaint (e.g., about workplace harassment) when you make any employment decisions. Carmen Carothers v. County of Cook, et al., Case No. 15-1915 (7th Cir., Dec. 21, 2015).

Bottom Line

The lawfulness of many employment decisions often comes down to the question of whether you’re treating a particular employee the same way you’ve treated similarly situated employees in the past. As you prepare to take an employment action (e.g., disciplining an employee for misconduct), always ask yourself, what have you done under similar circumstances in the past? No two employment decisions are ever identical, so you must consider similar circumstances. The importance of good documentation cannot be overstated because it will often help you recall what you did in similar situations in the past.


This article, slightly modified to note recent updates, was featured in the February 2016 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "Another “Everything but the Kitchen Sink” Lawsuit Won by Employer," contact Michael J. Modl at mmodl@axley.com or 608.283.6702.