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Yes, You Can Be Fired For Leaving A Passed Out Student To Die

by | Dec 14, 2022 | Employment Discrimination, Employment Law, Federal Law Update, Race Discrimination, Wrongful Termination |

In another example of an employee being fired for bad conduct but trying to save his job by asserting employment discrimination, our employees’ rights lawyers look at the recent case from the United States Court of Appeals for the Eighth Circuit, Thompson v. Univ. of Arkansas Bd. of Trustees, 52 F.4th 1039, 1041 (8th Cir. 2022). In this case, Thompson, who is Black, has worked for the University of Arkansas at Fort Smith Police Department (“University PD”) since 2012. In 2015, Raymond Ottman, who is White, started as the UAFS PD Chief.

On August 24, 2017, Officer Thompson responded to a call in a dormitory room and found

an intoxicated man was passed out and foaming at the mouth. Officer Thompson took two female students from the room to question them for approximately twenty minutes. Contrary to procedure, as well as common sense, Officer Thompson never checked the passed-out man’s vitals, positioned his body to reduce the risk of choking to death, nor administered other first aid. Indeed, in responding to one resident’s request for Officer Thompson to help the man, he merely responded that paramedics were on the way. The paramedics did eventually arrive and transport the man to the hospital.

The resident assistant complaint on August 29, 2017, to Chief Ottman, who in turn reviewed Officer Thompson’s body-camera footage. Believing that the Officer Thompson’s was so problematic that it warranted firing him, he reported the situation above him to two superiors, Brad Sheriff and Lieutenant Tiffany Johnson. All were alarmed by Officer Thompson’s callous failure to follow proper first-responder procedures.

On September 1, 2017, Office Thompson was fired for cause with the termination of employment letter explaining that Officer Thompson “failed to approach or attend to the victim,” “check for a medical alert ID,” “check vital signs,” and “provide first aid.”

Officer Thompson sued alleging that he suffered a wrongful termination based on race discrimination. Specifically, Officer Thompson pointed to certain instances that he believed supported his claim. First, Chief Ottman noted his belief that Officer Thompson looked like George Jefferson, an African-American character from the 1970s and 1980s television shows All in the Family and The Jeffersons. Officer Thompson further complained that Chief Ottman declined to give him certain holidays off and repeatedly scheduled him for third shift despite Officer Thompson’s stated request for more flexibility.

What conduct creates a racially hostile work environment?

The United States Supreme Court has held that a work environment will be found to be hostile where “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted). To be a hostile work environment to conduct under Title VII and related federal employment statutes, the offending conduct must be based on the employee’s gender/sex, national origin, race/color, religion, LGBTQ+ (such as gender identity and sexual orientation), age, or disability. Typically, courts have held that isolated “offhand comments” are not sufficiently severe nor pervasive to alter the conditions of employee’s employment to create a hostile working environment. Indeed, some courts have held that depending on the circumstances, even one use of the n-word may not be sufficient to create a hostile work environment.

With this in mind, a boss, supervisor or manager’s singular instance of stating that a subordinate employee looks like a TV star is not likely ever going to create a hostile work environment.

Best Lawyer Blogs On Point:

How do I prove that I was treated unfairly because of my race?

It is not enough for an employee to show that he or she was treated unfairly. In order to state a claim disparate race discrimination, any unfair treatment must be tied to racial inequity. Stated differently, employees must show that the employer treated other of similarly situated employees of different race more favorably. One of the keys for a Black employee to prove a disparate treatment race discrimination claim is to identify White employee or employees who received more favorable treatment.

While Officer Thompson may have been upset that he had to work on holidays and regularly on the night shift, he presented no evidence that White similarly situated officers were not subject to the same requirement. He simply said that he was upset about that treatment.

Best Lawyer Blogs On Point:

So, what happened to Officer Thompson?

Needless to say, it did not go well for Officer Thompson. The United States Court of Appeals for the Eighth Circuit held:

Thompson’s arguments about the University’s investigation, comparator employees, and Ottman’s changing reasons for dismissal fare no better. The brevity of the University’s investigation does not constitute evidence of pretext because the seriousness of Thompson’s conduct was apparent from the body-camera footage. See Schaffhauser, 794 F.3d at 904; McCullough v. Univ. of Ark., 559 F.3d 855, 863 (8th Cir. 2009) (noting that “the appropriate scope of investigation is a business judgment, and shortcomings in an investigation do not by themselves support an inference of discrimination.”). Regarding comparators, Thompson points to no other employees who engaged in similarly dangerous conduct and were not fired. See Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 925 (8th Cir. 2014) (noting that comparators can support an inference of discrimination only when they “were engaged in the same conduct without any mitigating or distinguishing circumstances”). Lastly, as to Ottman’s shifting reasons for dismissal, Thompson reads too much into slight differences in Ottman’s explanations. Specifically, Thompson notes that the dismissal letter criticized his questioning of the students in the hallway and his failure to assist paramedics, in addition to emphasizing the risks that his conduct posed to the intoxicated man. By contrast, in response to an interrogatory requesting all reasons for Thompson’s dismissal, Ottman referred only to the risks to the intoxicated man. Thompson’s argument is unconvincing because the differences between the dismissal letter and Ottman’s interrogatory response are minor. Like Ottman’s interrogatory response, the dismissal letter primarily focuses on the risks to the intoxicated man. See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 835 (8th Cir. 2002) (noting that an employer’s ”slight elaboration” that “did not back off from the original explanation” for dismissal was not probative of pretext).

In sum, viewing the evidence in Thompson’s favor, no reasonable jury could find that the August 24 incident was a pretextual ground for Ottman’s dismissal.

Thompson at 1043–44.

Best Attorney Blogs On Point:

What should I do if I was fired today because I’m Black?

Best Race Discrimination Attorney Answer: Race discrimination is illegal and must be stopped. If you were wrongfully fired because or race discrimination or because you were held to a higher standard than White  employees, you need to call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. Spitz, The Employee’s Law Firm will provide you a free and confidential consultation during which you will consult with a race discrimination lawyer. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Our Ohio, Michigan, Kentucky, and North Carolina race discrimination attorneys are here to fight for your race discrimination rights.

Disclaimer:

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