Getting the Story Straight: 3d Circuit Highlights Need for Employers To Have a Consistent Reason for Firing Worker In Order to Avoid Trial

I am one of seven children, and distinctly recall, decades ago, when one of my brothers passed a football in the living room and broke a cherished lamp. We all worked to get our story straight before our parents got home.  Defending employment cases is no different, as ensuring that an employer provides a consistent explanation for disciplining an employee is key to the defense.

The Third Circuit just revived a discrimination case against an employer where, in the Court’s view, the employer just did not give a straight story about why it fired an employee who had recently taken leave for heart surgery.

Defending employment cases is something that takes skill precisely because there are patterns that occur that can only be known if you’ve defended these cases over and over again. One of the risks in these cases is a circling of the wagons effect, with co-workers refusing to agree on who made the decision to pull the trigger, and giving inconsistent reasons for why someone was terminated. It’s the job of the defense attorney to do his or her best to make sure everyone is on the same page, where possible. Sometimes its as simple as a manager not wanting to admit he played a role, or not wanting to step on the toes of a more senior executive. Sometimes the employer's policy on who is the decision-maker is not at all clear, and this shows up in litigation later.

In Cullen v. Select Medical (link: https://cases.justia.com/federal/appellate-courts/ca3/18-2912/18-2912-2019-08-22.pdf?ts=1566493208) the Third Circuit Court of Appeals revived a suit accusing a rehabilitation center operator of firing a worker because he took leave to treat a sudden heart condition. The long-time employee had sued under the Americans with Disabilities Act (“ADA”) and Family Medical Leave Act (“FMLA”).

The panel of judges ruled that Select’s shifting answers as to how and why it fired Cullen were suspicious, even if evidence shows the company kicked around the idea of eliminating his position long before he got sick with a heart condition. The Court reversed the decision of the district court granting summary judgment, finding that “a jury should have been permitted to consider whether Cullen's firing was retaliatory" for taking medical leave.

 The opinion demonstrates why a consistent story from an employer is essential, from the moment an employee is disciplined, up through the time a motion for summary judgment is filed. 

Select had told the employee it was cutting his job in a restructuring following its acquisition of Physiotherapy Associates, which operated in the same space. This is what it told the district judge, too, that it had planned to eliminate that position for a long time. 

The problem on appeal was that in answers to interrogatories, the company had also cited Cullen’s performance as having played a role in his termination.

Worse yet, although sworn answers to interrogatories said that his performance played a role, when witnesses were produced for deposition, two Select executives went on to testify that his performance did not play a role. 

As an additional inconsistency, there was conflicting testimony about who made the decision to terminate the employee. In the words of the Court:

"Select Medical offered inconsistent explanations of who made the decision to fire Cullen. In its interrogatory responses, Select Medical explained that Watts and Malatesta decided to fire Cullen, and that Daniel Bradley (another executive) and John Saich (the head of human resources) signed off on the decision. But during their depositions, everyone but Watts denied making the termination decision. And for his part, Watts testified that he was the sole decisionmaker."

Answers to interrogatories are binding, and offering testimony in conflict with them can have serious implications in an employment case.

Lastly, the opinion states that there was inconsistent testimony about when the decision to fire was made.

The Cullen opinion is a great reminder for employers to be sure they offer one consistent story about discipline and termination of an employee. Sometimes this can outside the employer’s control, for instance in a situation where one of the decision-makers or co-workers leaves the employment of the employer while the case is pending. Careful preparation of all sworn discovery responses, and preparation of witnesses for depositions, is key.

*Kevin J. O'Connor, Esq. is a shareholder with Peckar & Abramson, PC, a national law firm, and focuses his practice on EPL, D&O, class action defense, construction and commercial litigation. He is resident at its River Edge, NJ office.  The content of this article does not necessarily represent the views of P&A.