My law partner Jon Yarbrough alerted me to a recent court decision that is full of little gems for employers. I thought I'd break the decision down into "true fables," each with a moral that employers can use.
Summer D. Lashley, Ph D v. Spartanburg Methodist College, et al.
The case involves Summer D. Lashley, Ph D [sic], who was hired by Spartanburg Methodist College to teach Criminal Justice and head the Criminal Justice Program. She had a one-year contract. During her first semester, she reported some alleged harassment of female students by male students and contended that she had a disability and needed accommodation.
Fellow faculty members said the Professor fraternized excessively, and sometimes inappropriately, with students, missed class a lot, and was often unprepared when she showed up for class, among other things. By February of her one-school-year contract, she was told that her contract would not be renewed for the following academic year. She allegedly took the news very badly, allegedly telling some students she wanted to "blow the place up" and allegedly saying, "Bad stuff happens when people cross me. My dad says it's true. They turn up dead." After receiving these reports, the President of the college decided to cut her loose right then and there. (He did pay her for the remainder of her contract.)
Professor Lashley sued, claiming that she was retaliated against for seeking reasonable accommodation under the Americans with Disabilities Act and for reporting student-on-student harassment under Title IX. She also claimed that the college unlawfully failed to make reasonable accommodations for her disability and unlawfully asked about her health. A federal judge in South Carolina granted summary judgment to the college (her state law claims were sent back to state court). A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit recently affirmed.
Here are my favorite morals for employers from the Fourth Circuit decision.
MORAL NO. 1: "NOT A GOOD FIT" CAN BE LEGIT.
When Professor Lashley's contract was non-renewed, her boss told her that she wasn't "a good fit." She claimed that this vague reason was a pretext for an unlawful reason -- either retaliation or discrimination.
Sometimes telling an employee that he or she is "not a good fit" really can be a pretext for an illegal reason. But not in this case, according to the court:
“Though there may be circumstances where evidence reveals that 'good fit' is a subterfuge for discrimination or retaliation, it is also a perfectly innocuous comment that an organization's collaborative goals would not be furthered, and in fact might be retarded, by a particular employee. . . . [T]he record [in this case] reveals unrelieved personality conflicts, unprofessional favoritisms, unwarranted threats, and contempt for what the [college] was attempting to accomplish."
Plus, there was evidence that Professor Lashley herself had told people that the college was not a "good fit" for her and was actively and openly looking for employment elsewhere.
MORAL: Employers, you can say an employee is "not a good fit," as long as you can flesh it out with some specific, legitimate reasons to support that conclusion. If your employee admits she's a bad fit, then all the better.
MORAL NO. 2: WHEN IT COMES TO REASONABLE ACCOMMODATION, ESP IS NOT REQUIRED.
Professor Lashley requested an accommodation form from the Human Resources office and disclosed to HR that she had Crohn's Disease. But she never completed the form, and she never told anyone what "accommodation she would need to perform the essential duties of her job." The court found that she failed to engage in the ADA interactive process with the college. Therefore, "[w]e cannot fault SMC for failing to accommodate plaintiff. Due to Lashley's communication breakdown, SMC was left guessing what an accommodation for Lashley might entail."
MORAL: You don't have to guess about reasonable accommodations. If the employee doesn't make a request for accommodation, or doesn't provide enough information, then you usually won't have to accommodate. (Exceptions sometimes apply, so always consult with counsel.)
MORAL NO. 3: IF YOU DON'T KNOW ABOUT THE PROTECTED ACTIVITY, THEN YOU CAN'T RETALIATE. BY DEFINITION.
As noted above, Professor Lashley claimed that she was retaliated against for (1) requesting a reasonable accommodation, and (2) reporting allegations of sexual harassment between students. Both of these are legally protected activities, and she arguably suffered adverse action in the form of non-renewal of her contract and then the accelerated termination.
The problem with her claims is that she's also required to show a "causal link" between the protected activity and the adverse employment action. In non-legalese, that means she has to show that the employer did bad things to her because she requested a reasonable accommodation or reported allegations of sexual harassment. She couldn't show that, according to the court, because the boss who non-renewed her didn't know she had done either of these things. The President, who fired her ahead of schedule, didn't either. How could they "punish" her for engaging in protected activity that they didn't know she'd engaged in?
MORAL: Ignorance is bliss. It's impossible to retaliate based on protected activity that you don't know about.
MORAL NO. 4: "GUILTY BEYOND A REASONABLE DOUBT" APPLIES ONLY IN CRIMINAL LAW.
In February, Professor Lashley was told that her contract would not be renewed for the following academic year. As previously noted, she did not receive that news well. First, even though the semester was nowhere near the end, she allegedly started emptying her office and hauling her stuff out to her car. When her boss asked what she was doing, "she angrily shouted at him for betraying her." Allegedly. The next day, she allegedly told the group of students "that she felt like 'blowing the school up.'" She allegedly implied that people who did "bad stuff" to her "turn up dead." Finally, she allegedly "called certain individuals like [her boss] 'evil people' who would 'get theirs.'" All of this got reported to the college President, who went ahead and fired her effective immediately.
Professor Lashley denied making any of these comments, but the court correctly said that isn't the issue in an employment case. The issue is whether her employer believed she was making threats. If it did, then it was entitled to act on those perceived threats. Even if the employer turned out to be wrong.
MORAL: An investigation is always recommended if possible, but if you have a reasonable, honest belief that misconduct occurred that would justify termination, then you should be able to terminate based on that belief. Again, consult with counsel before you act.
And now, for a little Aesop-related entertainment:
That was weird.
