Employers seek to hire and retain workers who not only can do the job, but show enthusiasm while working and perform the job effectively. Some workers shortly after being hired and others, perhaps later, become lackadaisical related to their job performance. When dealing with such a worker, it is best to provide a clear review identifying the dissatisfaction that management has with the worker’s performance along with identifying what the worker is doing well. Not only is this fair to give that worker an opportunity to “shape up or ship out”, it also protects the company when, after firing that worker, he claims it was because of some legally protected right of his; whether it be race, religion, gender, disability, or taking statutorily protected medical leave.
In the case of Alex D. McMillen v. Concord Hospital, the New Hampshire federal court trial judge on September 22, 2014 found that Alex McMillen’s claims violations of the federal Family and Medical Leave Act (FMLA) and wrongful termination against Concord Hospital could not go to a jury and granted the hospital summary judgment after it showed a clear record of informing him of his the performance deficits and treating him fairly. McMillen had been employed as a security officer prior by Concord Hospital. He had a motorcycle accident and thereafter took FMLA leave. He later claimed that he had become depressed because his injuries precluded his goal of later going into law enforcement. In a very well detailed and documented performance evaluation he was informed about his “I don’t care” attitude and noted that when McMillen was interested and motivated he was a capable, if not laudable, employee, yet he had become disinterested. Ultimately, McMillen was fired for being insubordinate in failing to follow a clear policy to not be seated when dealing with a volatile patient; an action that was similar to the prior negative performance reviews of his lackadaisical attitude. The policy was in place so that the security guard would be ready to act if the volatile patient got out of control and so that his own seat could not be used as a weapon by the patient. For all of us that have been in a hospital when a volatile patient needs to be restrained, the common sense of this policy is obvious. McMillan’s firing was deemed by the trial judge as justifiable upon which no reasonable jury could conclude otherwise, notwithstanding his claim that it was a result of him previously taking medical leave and his perception that the Hospital was fearful that he would take leave again for complications related to that accident. The Hospital’s performance evaluation had clearly pointed out that McMillen was capable of doing his job when he was interested, yet his lackadaisical attitude was unacceptable.
When an employee has been suspended, fired, or has another adverse employment action taken against him because of his lack of effort that is clearly documented, the company is generally in a good position to protect itself from a claim brought by that worker, as was Concord Hospital. Even though McMillen argued that his performance issues were because of his depression that did not relieve him from trying to perform his job.
Lastly, the Court also addressed a non-statutory wrongful termination claim under state law. To prove such a claim, McMillen would have had to show that he was terminated out of bad faith, malice, or retaliation and that Concord Hospital terminated his employment because he performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn. The fact that McMillen was insubordinate in directly violating the rule he was aware of did not support a wrongful termination claim. McMillen also stated that he was fired because Concord Hospital perceived that he might take medical leave in the future because of his motorcycle accident. However a New Hampshire non-statutory wrongful termination claim cannot be based upon a worker’s status, but the actions that he took or refused to take.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].