May 21, 2022

Volume XII, Number 141

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In The Eleventh Circuit, Employers Can Terminate “Protected” Employees for Poor Performance and Violation of Company Policy

On December 4, 2014, the U.S. Court of Appeals for the Eleventh Circuit upheld summary judgment in favor of an employer against a pregnant employee who had requested FMLA, who was told by her direct supervisor “that [her] pregnancy was affecting [her] effectiveness” and who had complained about this to the employer’s Ethics Hotline.

Pregnant Employee

In Torres-Skair v. Medco Health Solutions, Inc., the employer was able to overcome the employee’s claims of pregnancy discrimination and retaliation.  It was able to do so because, according to the Eleventh Circuit, “deficient job performance remains a non-discriminatory basis on which employers may make employment decisions, so long as performance standards are applied equally.”  Here, in the absence of evidence of an unequal application, the employee did not have a viable claim regarding her negative performance evaluation.

The employee’s complaints about being placed on administrative leave and then terminated faired no better.  Although the employer offered three reasons to support its actions, one of the reasons – hanging up on a customer – precluded the employee’s claim of pretext.  With respect to that work rule violation, the Court rejected the employee’s arguments that she should have been placed on a “performance focus plan” instead of being terminated and that the abuse and ridicule by the customer justified the hang-up because Medco’s harassment policy prohibited both employees and customers from engaging in “name calling, slurs, or derogatory remarks.”  In so doing, the Court noted that the harassment policy did not authorize self-help by the employee who should have reported the incident as provided in the policy.  The Court also supported its conclusion that there was no pretext “by relying on the employer’s good faith belief and not on the employee’s perception.”

Finally, the retaliation claim was rejected because the employee’s contention that there was a causal connection between her complaints and the adverse action was “nothing more than mere speculation” and “far too indirect and attenuated to be actionable.”

All in all, December 4th was a good day in Court for employers in the Eleventh Circuit.

© 2022 Proskauer Rose LLP. National Law Review, Volume IV, Number 343
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About this Author

Allan H Weitzman, Proskauer Rose Law Firm, Labor Employment Attorney
Partner

Allan H. Weitzman, named by Best Lawyers as “Lawyer of the Year 2013” in Employment Law – Management in the Miami area, is a Partner in the Labor &  Employment Law Department and head of the labor and employment team in the Boca Raton office. He also is co-head of the Employment Law Counseling & Training, Non-Compete & Trade Secrets and Accessibility & Accommodations Groups, as well as a member of the International Labor & Employment Group.

561-995-4760
Jurate Schwartz, Whistleblower Attorney, Proskauer Rose Law Firm
Special Employment Law Counsel

Jurate Schwartz is an Associate in the Labor & Employment Law Department, who devotes her practice to representing employers in federal and state litigations, arbitrations and administrative proceedings, as well as counseling clients in employment matters.

561-995-4732
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