The Fifth Circuit issued a strained interpretation of events in the recent case of Norbach v. Woodland Village Nursing Center, Inc., No. 13-60378 (5th Cir. 6/18/2015). In Norbach, the employee at a nursing home refused to pray the rosary with a resident. She was asked to do so by a co-worker. She was then called into the office by a supervisor. The boss told her that refusal amounted to insubordination. Ms. Norbach then said she could not pray the rosary. It would be against her religion. The supervisor said it did not matter. It was insubordination to refuse the request. She was fired. Ms. Norbach filed suit and eventually lost before the Fifth Circuit. The court of appeals found that the decision to terminate had been made before the employee raised her religious freedom as a motive. So, said, the court, the decision to terminate could not have been based on Ms. Norbach’s religion. See decision here.
Say what? The employee told the employer she was refusing based on her religion. He then replied that to refuse was insubordination for which termination was the appropriate response. If the decision had already been made, it was surely subject to recall when the employee explained her actions. And, it was surely just a matter of minutes before she explained her motivation. Strained interpretations make bad precedent.
I am reminded of the Norbach case, with its minute-buy-minute analysis regarding when a decision to terminate is made when I hear about the employee who nodded off at work. She was on medications for MS. The medications cause drowsiness. The employee tried to explain, but her boss would not listen. Her boss decided to fire her. She filed an EEOC charge, but like the Fifth Circuit in Norbach, the EEOC investigator decided the matter with that nano-second analysis. The investigator argued that the decision to terminate was made before the supervisor knew about the medications and the impairment. Well, wait a minute. If the supervisor made the decision to terminate before she learned about the medications, it was just barely before. It was seconds before. Yet, the EEOC investigator was prepared to dismiss the charge based on nano-second analysis.
This time, the employee had a lawyer, who argued no, the discussion was more complicated than that. The decision to terminate was not clearly made. And, really, the employer could have withdrawn its decision once it learned about the medications.
The EEOC investigator backed off his initial decision to dismiss. A few months later, the employer settled for a substantial amount. But, for a nano-second, the EEOC was prepared to engage in some injustice based on strained analysis.