11th Cir.: Hospital employee fired for performance, not reporting racial slur

Dive Brief:

A patient care technician was unable to prove that a hospital's stated reasons for firing her — patient complaints about her work performance and violations of the hospital's behavior rules — were pretexts for illegal retaliation (Ellison v. St. Joseph's/Candler Health System, Inc., No. 18-10840 (11th Cir. June 13, 2019)).
While the employee claimed she was fired for complaining about a nurse who allegedly twice used a racial slur, the hospital said she was fired after co-workers and patients complained about her work performance, attitude and language. This was in violation of a nine-tenet hospital "co-worker compact" designed to foster a "culture of excellence"; it included demonstrating a sense of ownership toward the job, engaging in appropriate behavior, rejecting rudeness, treating co-workers as professionals and making patients comfortable while they wait for services.
The trial court granted the hospital's motion for summary judgment, finding that the employee had failed to prove that the hospital's stated reasons for firing her were pretextual. On appeal, the 11th Circuit affirmed (though it did note that some of the evidence surrounding the alleged slur was "troubling").

Dive Insight:

Title VII of the Civil Rights Act of 1964 protects employees who engage in protected activities, including complaining about discrimination. If an employee has engaged in protected activity but discipline is legitimately required, it's important for managers and supervisors to have strong documentation, including a clear record of the facts that justify the disciplinary action. Managers and supervisors should understand that timing alone can establish a prima facie case of retaliation, attorneys have previously told HR Dive.

The U.S. Equal Employment Opportunity Commission has suggested that employers use several tools to prevent and eliminate harassment, including clearly communicating to employees that unwelcome harassing conduct will not be tolerated, that companies establish an effective complaint or grievance process and that employers take immediate and appropriate action when an employee complains.

Additionally, as employers have seen in the context of #MeToo, creating a culture of civility and respect is also important. "Creating a workplace culture that has no tolerance for inappropriate conduct starts at the top and gets reinforced daily throughout the organization," according to Gary Clark, a partner with Quarles & Brady LLP in Chicago.