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March 26, 2014

Employer Avoids Discrimination Trial Thanks to Robust Investigation and Documentation Policies

On February 28, 2014, Superior Court Justice Curran granted summary judgment in favor of a nursing home, Wingate Healthcare, Inc. (“Wingate”), on three wrongful termination claims brought by former certified nursing aides (“CNAs”). Metelus v. Wingate Healthcare, Inc., 2014 WL 1056417 (Mass. Super. Feb. 28, 2014). Wingate was able to win summary judgment in this case – thereby sparing itself the substantial expense and uncertainty of a trial – because it conducted thorough and well-documented investigations, including detailing the basis for its disciplinary action against the Plaintiffs and other CNAs. In addition, Wingate had, and followed, detailed HR policies and a well-drafted employee handbook. This decision serves as a practical illustration of how careful attention to these critical documents can save an employer significant time, money, and risk in the future.

The case involved three CNAs who Wingate terminated after all three refused a request by their supervisor to “float” to another floor in the facility to meet patient needs, and threatened to go home if ordered to do so (thereby abandoning their patients). Wingate’s Nursing Director promptly investigated the incident thoroughly, after which she provided each of the three CNAs with a written warning detailing the offending conduct. During the course of this investigation the Nursing Director became aware of some additional improper actions by the same three CNAs (including insubordination and generally poor patient care). After the Nursing Director conducted a second investigation into that additional improper conduct, Wingate terminated each of the three CNAs. All three sued Wingate, alleging national origin discrimination and breach of contract.

Dismissal of the National Origin Discrimination Count

The crux of the Plaintiffs’ national origin discrimination count was that Wingate terminated them because they were of Haitian descent. The Plaintiffs offered no direct evidence of discriminatory motive, but attempted to establish a prima facie case of discrimination by showing that Wingate did not terminate a non-Haitian CNA after she received a written warning for refusing to “float” to another floor.

Whether another employee is “similarly-situated” is a fact-intensive inquiry and, therefore, usually precludes the entry of summary judgment. Here, however, Justice Curran was able to grant summary judgment because Wingate had detailed documentation that made clear the “comparator” CNA was not “similarly-situated” for discrimination purposes because the circumstances surrounding her discipline were not “substantially similar” to the Plaintiffs’. Specifically, Justice Curran was moved by two pieces of evidence:

Detailed Written Warnings - When Wingate’s Nursing Manager issued warnings to the Plaintiffs and the “comparator,” she not only issued them in writing but she made sure they included detailed descriptions of the offending conduct. From this, Justice Curran was able to conclude that the Plaintiffs’ conduct was substantially worse than that of the “comparator,” and therefore the latter was not “similarly-situated” as a matter of law.

Thorough Investigations - Wingate’s Nursing Manager also conducted two separate investigations into the Plaintiffs’ conduct and documented each thoroughly. This documentation: (i) made clear that Wingate only terminated the Plaintiffs after the conclusion of the investigations; and (ii) confirmed that there was no disparate treatment in the conduct of the investigations (i.e., Wingate investigated the Plaintiffs’ conduct as thoroughly as it did other employees’). This documentation, according to Justice Curran, negated the Plaintiffs’ claim that there was a “presumption of discrimination.”

Dismissal of the Breach of Contract Count

The Plaintiffs based their breach of contract claims on their allegation that Wingate never afforded them the “progressive discipline policy” purportedly guaranteed by Wingate’s employee handbook. As Justice Curran acknowledged, it is black letter law in Massachusetts that an employee handbook can become an implied contract even where employment is at-will, particularly where the employee has a “reasonable expectancy that management will adhere to a [handbook’s] provisions.” But once again, Wingate’s attention to detail – this time with regard to the wording of its employee handbook – permitted Justice Curran to find in its favor and conclude that the employee handbook did not create a contract as a matter of law. In so ruling, Justice Curran relied primarily on two of the handbook’s characteristics:

Discretionary Nature of Policies - Justice Curran ruled that, although the handbook provided that employees “are subject to progressive discipline,” the Plaintiffs could not have had a reasonable expectation of entitlement to the policy because in the handbook Wingate also explicitly “reserve[d] the right to accelerate or skip disciplinary measures as necessary based on the needs and safety of the facility.” Such clear discretionary language negated the Plaintiffs’ claim that they had a reasonable expectation that they would be afforded progressive discipline prior to termination.

Disclaimers – Justice Curran also cited the handbook’s repeated and explicit disclaimers that made clear it did not create any contract between Wingate and its employees. Specifically, the handbook included multiple statements reaffirming the employees’ at-will employment status, and also stated that it was “presented as a matter of guidance only” and did not “constitute a contract.”

In general, employment discrimination cases are highly-factual and, therefore, are very difficult for defense counsel to dispose of short of trial. But as this case highlights, there are steps an employer can take ahead of time to maximize its chances of avoiding the expense, hassle, and risk of a trial. These steps including having a carefully-crafted employee handbook and thorough HR policies in place, conducting thorough and well-documented investigations into employee conduct, and drafting summaries or letters that clearly describe the basis for any disciplinary action. All of these steps can help provide clear evidence to refute wrongful termination claims, and may end up saving employers significant time and money, as was the case with Wingate.


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