A recent decision by the Court of Appeals of Tennessee, in which the employer prevailed in a retaliatory discharge claim, demonstrates the importance of (1) maintaining confidentiality of workplace investigations and (2) keeping a cool head when dealing with an employee who is basically (or literally) asking to be fired.
Cindy Terry worked as a medical sales product representative for Medical Center Medical Products (MCMP), an affiliate of Jackson-Madison County General Hospital District. She was part of a two-person team, along with Paige Higgins. Both Terry and Higgins were supervised by Ranee Terry (R.T.)—who isn’t related to Cindy Terry.
During the 2010-11 fiscal year, MCMP sustained a large loss. On April 5, 2011, R.T. met with Terry and Higgins to address how to improve the situation. She informed them she was thinking about changing the team approach and instead assigning each employee individual territories and accounts. She also directed both employees to begin preparing several categories of weekly reports that would be due by 8:00 a.m. on Monday of the following week.
On the very same day as the MCMP team meeting, another employee filed a complaint with the hospital’s HR department claiming that R.T. had subjected her to racial slurs and derogatory remarks. An HR employee conducted an investigation, interviewing several witnesses, including Terry.
The investigator then prepared a summary of her findings and sent the summary to Karen Utley, a vice president of the hospital and R.T.’s direct supervisor. HR redacted the names of all witnesses participating in the investigation from the report and didn’t inform Utley or anyone in the applicable chain of command of the identities of the employees who participated in the investigation. Based on the findings in the report, Utley met with R.T. and provided verbal counseling.
Performance issues continue
As time went on, R.T. experienced increasing problems with Terry’s job performance. She failed to carry out the duties and submit the reports that had been assigned to her in the April 5 meeting and was absent from work.
On May 18, R.T. met again with Terry and Higgins to go over their goals and job responsibilities. She again asked both employees to submit weekly reports. Higgins complied with her requests, but Terry did not. Higgins grew increasingly frustrated with what she perceived as an unequal workload between herself and Terry, saying she was “fed up” with how things were going. She asked R.T. to pursue the idea of splitting up the territories and accounts so each woman would be responsible solely for her assigned accounts instead of sharing all the accounts.
In June 2011, R.T. took steps to divide the territories, asking both Terry and Higgins to submit spreadsheets to assist in this process. Terry failed to submit the spreadsheet. She also continued to fail to submit a territory map that had been requested from her since the previous January. She complained that the division of territories was unfair and continued to refuse to cooperate in the process. About the same time, R.T. received
reports that Terry may have been falsifying records, indicating that she was visiting certain physicians when no such visits had been made.
Following an August 4 meeting in which R.T. again asked Terry for overdue work product and reports that she had failed or refused to provide, R.T. decided to set up a meeting with herself, Terry, and an HR representative to discuss Terry’s performance issues. On August 18, they all met again, and Terry signed a copy of her job description and was issued a written warning for insubordination and poor job performance.
Regardless, the issues continued and seemed to come to a head on August 26, when R.T. entered Terry’s office to find she had cleaned out her desk. Terry then requested a meeting, attended by R.T. and an HR representative, in which she stated that she believed she was being subjected to retaliation by R.T. because she participated in the HR investigation into the claims against R.T. the previous April. R.T. later testified that was the first time she had learned of Terry’s participation in the investigation.
Terry’s retaliation complaint was elevated to certain individuals in hospital management. She said that she felt her job responsibilities had been changed and that she was being singled out for criticism, and witnesses testified that on more than one occasion she asked to be fired. Meanwhile, R.T. continued to try to work with her, requesting that she
complete overdue reports. She continued to refuse.
Finally, R.T. contacted Utley to ask for permission to fire Terry. Utley approved. Terry filed a grievance with the hospital, and following a hearing, the termination was upheld. She then sued the hospital for wrongful termination in violation of the Tennessee Human Rights Act (THRA), which prohibits retaliation against employees who engage in
protected activity, such as participating in workplace investigations.
Before trial, there was a skirmish over whether Terry was entitled to a jury trial on a THRA claim filed in circuit court. The trial court held that she wasn’t entitled to a jury trial and granted the hospital’s request for trial by judge. The case was tried, and the court ruled in favor of the hospital, holding that she failed to meet her burden of showing she was terminated because she engaged in protected activity rather than because of her performance issues. The court also found that the individual who ultimately directed her termination—Utley—wasn’t even aware that she had been a witness in the investigation and therefore couldn’t have retaliated against her. Terry appealed.
The court of appeals affirmed all aspects of the trial court’s rulings in favor of the hospital. First, it agreed that Terry failed to establish an essential element of her claim—namely, that Utley knew she had been a witness in the investigation into R.T.’s conduct. Case law holds that an employer shouldn’t be held liable for retaliation if it has no knowledge that an employee engaged in the protected activity in question. Utley testified she had no such knowledge, and Terry wasn’t able to provide proof to the
contrary, other than her own speculation. The court pointed out that Utley couldn’t have learned her identity based on the HR report of the investigation because all the witness names were redacted.
The court also pointed out that R.T., who requested the termination, didn’t herself know about Terry’s protected conduct until Terry told her in the meeting on August 31. And at that point, R.T. had already had numerous documented interactions with her about her job performance, and she had already received a written warning putting her on notice her job was in jeopardy.
The court also affirmed the trial court’s ruling that Terry had failed to prove a causal connection between her protected activity and her termination. To prevail in a THRA retaliatory termination claim, an employee must show that “but for” the protected activity, she wouldn’t have been fired. In this case, however, the hospital was able to present voluminous witness testimony and documented proof of Terry’s performance issues and refusal to perform her job duties as requested. She also failed to present evidence showing she was “singled out” or that similarly situated employees were treated differently or subjected to different standards. In fact, the hospital presented convincing proof that the other member of the two-person team—Higgins—had been assigned the same duties and responsibilities and willingly completed those tasks.
The court concluded that although Terry was adamant that she had been retaliated against, her mere belief about why she was fired wasn’t sufficient to overcome the proof submitted by the hospital. Terry v. Jackson-Madison County General Hospital District, No. W2017-00984-COAR3-CV.
Based on the trial record, the hospital seemingly did a lot right in this case, all of which contributed to its victory in the end. First, the confidential handling of the race discrimination complaint against R.T.—including the decisions to limit circulation of the report and redact the names of participating witnesses—was critical. Employers can take a lesson here. Although it isn’t always possible to maintain complete confidentiality of an investigation report, you should take all possible steps to keep the process and results of a workplace investigation in “need-to-know channels” and protect the identities of witnesses who cooperate in the process. This not only will encourage greater cooperation from employees, but it also—as demonstrated here—may protect you from subsequent retaliation claims.
Also, if the hospital had made a “knee-jerk” decision to fire Terry at the first sign of trouble with her performance, the outcome might have been different. Instead, it patiently counseled her on numerous occasions, pulling in HR when the situation didn’t improve and carefully documenting this process. Although dealing with her refusal to do her job over those weeks and months was likely very frustrating for all involved, the process created a solid evidentiary record showing that she was given every chance to get back on the right track. This was one of those situations in which, in the end, she gave the employer no choice but to fire her (and indeed apparently asked to be fired), and it did so likely expecting a lawsuit to follow. And sometimes, you can’t prevent a lawsuit. But if you are patient and consistent in your protocols, as the employer was here, you can put yourself in the optimal position to defend a claim if one comes your way.
This article first appeared in the Tennessee Employment Law Letter on 07/01/2018 and has be reproduced with permission.