Tips for Avoiding “Convincing Mosaic” of Discrimination

After retaining an employee through two year-long tours of duty in the Middle East and countless military drills amounting to 900 total days of absence, allowing the employee to modify her schedule to account for her military leave, and providing several accommodations when the employee returned from war diagnosed with post-traumatic stress disorder, you might think the employer would get some benefit of the doubt for its facilitation of the employee’s important military service. Yet when the employer terminated the employee for undisputed violations of the employer’s attendance polices, the United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) concluded that a jury would need to determine whether the employer actually fired the employee because of her military service or her disability.

The employer hired the employee in 2005, fully aware that she was a reservist during a time when the country was fighting two wars in the Middle East. The employer subsequently complied with the Uniformed Services Employment and Reemployment Rights Act over the following six years, retaining her employment and providing extensive time off for:

• A deployment to Iraq and Kuwait from April 2006 to May 2007
• A second deployment from April 2009 to August 2010
• Regular leave for weekend drills, training, and other military activities

Sadly, when the employee returned from her second deployment, she was diagnosed with PTSD. The employer supported her through a hospitalization and Family and Medical Leave Act (FMLA) leave. When she returned to work, the company granted her several accommodations, including allowing her to come late or leave early one day a week to attend therapy, providing her with a quiet space to mediate before work and during breaks, providing her with a mentor, and giving her extra breaks and support for counseling and during panic attacks.

Ultimately, however, the employee’s employment was terminated following repeated violations of the employer’s attendance policy after steady advancement through the progressive discipline policy. In total, she was late to work 15 times over the course of less than a year, and under the terms of Volvo’s attendance policy, her employment was terminated.

As we have summarized it so far, the case paints a picture of a conscientious employer seeking to comply with its obligations under the federal employment laws but having no choice but to discipline an employee for repeated attendance violations. However, when the employer asked for dismissal of the case, the appellate court ultimately concluded that a jury trial would be needed to resolve the case and decide whether the company discriminated because of the employee’s disability or military service.

Why? A “convincing mosaic” of circumstantial evidence. In other words, the court allowed the employee to point to many stray bits of evidence of discrimination and combine them to create a question for the jury. The “mosaic” included:

• Emails between supervisors questioning her specific legal rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA)
• Emails between supervisors joking about her absences and complaining about her missed time due to her medical issues and military leave
• The fact that the employee was disciplined at times for small violations of the attendance policy (being less than five minutes late)
• Alleged statements to the employee that her leave placed an undue hardship on the company

The court found that this collection of evidence was enough to call into question the company’s motivations despite the undisputed facts that the employee repeatedly violated the attendance policy.

So what is a conscientious human resources manager or employment lawyer to do when a matter like this hits his or her desk? You have an employee that has been accommodated and assisted for years who consistently fails to show up to work on time. The company has followed all of progressive discipline steps, but the attendance problems persist. What to do but terminate the employee?

There is no surefire way to avoid this scenario, but there are some things that can reduce the chances of this kind of outcome.

• First, supervisors should never be speculating about employees’ legal rights under the employment laws. This is the legal equivalent of the WebMD effect: With so much information available on the Internet, a few quick Google searches can make anyone know just enough to be dangerous. Supervisors should be trained ahead of time to bring these types of questions to HR or the legal department.
• Second, supervisors must be told in no uncertain terms that making jokes or complaining about employees exercising their legal rights will not be tolerated. Creating and maintaining a culture that respects employee rights can go a long way toward avoiding these kinds of “surprise” emails that typically do not surface until after a claim is filed.
• Third, if you are going to discipline an employee for “small” violations of work rules, be sure that you are holding all employees to the same high standard. Treating someone in a “protected” class more harshly than someone outside the class is the fastest way to a finding of discrimination or retaliation.
• Finally, any time a supervisor is talking to an employee about disability accommodations, military leave, FMLA, or any other hot-button issue, there should always be a witness (and preferably someone from HR). That way, you can at least try to avoid the he-said-she-said disputes that can only be resolved by a trial.

Some cases that look like slam dunks on first glance turn out to be more complicated originally imagined. But laying the groundwork and educating managers and supervisors ahead of time can reduce the risk of these kinds of surprises popping up months or years after an employee is terminated.