Discrimination lawsuits are hard to win. I have written many blog posts about that difficulty. One federal judge recently even wrote that Judges are killing Title VII. See my blog post about Judge Kopf’s blog post. Prosecuting a discrimination case is an uphill climb. So, it is important that any plaintiff do nothing to add to an already difficult endeavor. In a recent Western District of Texas case, we see how an employee can make her case worse. in Overton v. Seaborn Health Care, Inc., No. 12-CV-635, 2013 WL 6198227 (W.D. Tex. 11/272013), a female phlebotomist (a person who draws blood) sustained an on-rhe-job injury, tendinitis in her elbow and pain in her shoulder. The Judge characterized it as old-fashioned tennis elbow.
Ms. Overton’s doctor limited her ability to work, eventually recommending that she not work with her arm or hand more than two hours per day. This latest restriction came after prior restrictions. Seaborn did not have an on-site supervisor. But, Ms. Overton was effectively supervised by the Air Force personnel who worked at her facility. Seaborn had the contract to provide blood draws for the Air Force.
Upon seeing this newest restriction, TSGT Furlough told her she must go home after two hours, apparently suggesting she was of no use after she could no longer draw blood. According to the employer, Ms. Overton then went into a tirade, waving her hands in the air, raising her voice, and jabbing her finger at the sergeant. Allegedly, this outburst was in full view of the patients and workers who were present. MSGT Rea then arrived on the scene and was unable to calm Ms. Overton. MSGT Rea, according to the plaintiff, asked her why the doctor would release her to work if she could only work two hours a day. Ms. Overton said she could perform other duties for the rest of the day, but MSGT Rea was not interested. The Master Sergeant did not offer any other possible accommodations (other than going home after two hours – presumably without pay).
Ms. Overton admits she was upset. But, she denies she was angry and denies waving her arms. The Air Force then contacted Ms. Amadio, the President of Seaborn on the telephone. Ms. Amadio was Ms. Overton’s actual supervisor. The two Air Force sergeants invited Ms. Overton to come into an office and talk to Ms. Amadio on the phone. Ms. Overton declined to talk with her supervisor while the two sergeants were present. The phlebotomist told the two AF sergeants she did not trust them and would not talk to her supervisor while MSGT Rea and TSGT Furlough were present.
The Judge found her refusal to be a problem, because the Air Force was her client. And, they did in some ways act as virtual on-site supervisors. The Court noted that Ms. Overton denied going into a tirade but she did admit to being upset. The Court seems to suggest he does not believe her denial about the outburst. The judge, Xavier Rodriguez, granted the employer’s motion for summary judgment on all claims. See decision here.
One could argue with his interpretation of evidence and that he may have drawn fact inferences in favor of the movant, which he should not do. But, I have to note that refusing a phone call – even if only while the two sergeants are present – is not good for a lawsuit. And, really, what right does an employee have to deny speaking on the phone when requested by an actual supervisor or a client?
And, the judge noted that the employer was offering an accommodation, that she could go home after two hours. Yes, it was probably in a non-paid status. But, I cannot find a reason why that is not one possible accommodation.
So, after she declined the phone call, the Air Force personnel sent her home and Seaborn terminated her employment. The employer argued in its motion that she was fired for her behavior, not due to her disability.
The court acknowledged a difference in the facts, indicating that summary judgment might not be appropriate. Yet, he did grant summary judgment. Can you blame him? The plaintiff did not engage in a high level of respect toward her supervisors or her clients prior to her termination. That lack of respect alone will undermine even the best case.