Don’t let medical absences cloud your judgment

published in McAfee & Taft EmployerLINC | February 7, 2014

By Kristin M. Simpsen

In late January, the Tenth Circuit Court of Appeals issued a decision in Smothers v. Solvay Chemicals Inc. (No. 12-8013, 10th Cir. Jan. 22, 2014) that emphasized the importance of conducting a proper investigation and applying consistent discipline.


Steven Smothers worked as a mechanic for Solvay Chemicals for 18 years until he was terminated, ostensibly for a first-time safety violation and a dispute with a co-worker. In his lawsuit, Smothers alleged the company’s true reason for terminating him was retaliation for taking FMLA leave and discrimination on the basis of his disability in violation of the ADA.

injured-workerSmothers injured his neck in 1994, which required three surgeries between 1999 and 2004 and numerous other medical procedures. He suffered from severe ongoing pain, which caused him to miss quite a bit of work. Without pain treatments, the pain was so severe that he could not work. The pain also affected his sleep, as he often was able to sleep for only four hours, sometimes for up to six hours, a night.

Smothers sought and received FMLA leave from his employer for intermittent absences caused by his condition. Even though performance reviews showed he was an excellent mechanic with strong job knowledge, management and co-workers nevertheless complained about his FMLA-protected absences. One member of management pressured him to change from graveyard shift to day shift, where his absences could be more easily absorbed without the company incurring overtime. This move, however, would reduce Smothers’ income by $7,000 a year. Human Resources informed management that forcing this change would violate the FMLA. Management relented but continued to complain about Smothers’ absences from work.

In August 2008, Smothers removed a piece of equipment without following proper safety protocols. When a co-worker suggested he follow the proper safety protocol, Smothers disagreed and continued working. Later, the co-worker offered to assist; however, Smothers refused the co-worker’s assistance. According to the employer, Smothers told the co-worker, “I don’t want your kind of help” and said he “was going to take a sh*t and wanted to know if [co-worker] wanted to watch him to see if he did that right.” Smothers, however, described the interaction quite differently and asserted that the co-worker provoked the argument and began yelling at him. Witnesses characterized the interaction as an argument or confrontation.

Following this argument, the co-worker called management to make a complaint about Smothers. After receiving the complaint, the manager spoke with Smothers and drafted a summary of their conversation. They discussed removing the equipment without following the proper safety protocols. Smothers also told management that the co-worker had yelled at him in the maintenance shop. Management, however, did not tell him about the co-worker’s version of the events and did not ask him whether he actually made the comments that the co-worker alleged.

In a meeting with managers, Smothers tried to explain his version of the exchange with his co-worker, but one of the managers stated that the managers were not interested in hearing about the argument. The managers discussed the safety violation, and Smothers explained what he had done, apologized, and promised it would not happen again. He was subsequently suspended pending an investigation.

During the investigation, the co-worker was interviewed about his version of the argument; however, none of the decision-makers interviewed Smothers about his version of the argument. Smothers was then fired.

Following his termination, Smothers brought suit alleging FMLA retaliation, disability discrimination, and a state law breach of implied contract claim. Following discovery, the district court granted summary judgment in the employer’s favor. However, the Tenth Circuit reversed the district court’s grant of summary judgment on the FMLA retaliation and disability discrimination claims and held that the evidence taken in Plaintiff’s favor showed: “(1) [the employer] treated [Plaintiff] differently from similarly situated employees with comparable safety violations; (2) [the employer’s] investigation into [Plaintiff’s] quarrel with [his co-worker] was inadequate; and (3) [the employer’s] managers took negative action against Mr. Smother’s because of his FMLA-protected absences.”

Lessons learned from Smothers case

The bottom line: It is extremely important to conduct fair, impartial investigations and to apply discipline consistently across similarly situated employees.

Inconsistent application of discipline, as shown by the Smothers case, is a dangerous practice. Ensure that similarly situated employees (those employees with the same supervisor or who are subject to the same decision-maker) receive similar discipline for comparably serious offenses.

Perform proper investigations of both employee complaints and employee misconduct. Before starting an investigation, consider what policies or guidelines apply, how similar incidents have been handled in the past, what are you hoping to find out in the investigation, what questions will be asked, and if there are any actions (such as suspension) that need to be undertaken before the investigation can begin. Gather and review any relevant documents prior to starting the investigation.

It is important to select the right person to conduct the investigations. The person doing the investigation should have experience or training in conducting investigations and should be unbiased and unprejudiced.

Make sure to fully interview the employee who is under investigation and give him a chance to fully discuss or refute any allegations that have been made against him. Give the employee under investigation the chance to write down his side of the story. Consider whether witnesses can corroborate the allegations. Reach decisions based on the credibility of the witnesses and the information that the investigator has been presented. When an investigation is concluded, inform both the complaining party and the party being investigated the results of the investigation. Document everything.