Today, our employment discrimination lawyers review another example of an employee being fired for bad conduct but trying to save her job by asserting employment discrimination. In this case out of the United States Court of Appeals for the Eleventh Circuit, Daneshpajouh v. Sage Dental Group of Florida, PLLC, 2023 WL 334574 (11th Cir. Jan. 20, 2023), the plaintiff, Sara Daneshpajouh was employed by Sage Dental as the main dentist in its Pompano Beach, FL office. Like any other business, Sage Dental expected Daneshpajouh to provide good customer service and be pleasant to her coworkers. Unfortunately, Sage Dental received complaints from both other employees and patients about Daneshpajouh’s abrasive behavior. Consequently, Daneshpajouh had the lowest rates of patient retention and treatment acceptance in comparison to the other dentists. As a result, the Pompano Beach office suffered a 25 percent decrease in annual revenue in 2017.
Based on Daneshpajouh’s poor performance, Sage Dental’s management team decided to fire her. However, before they could fire Daneshpajouh, she informed Sage Dental that she was pregnant. She also reported potential violations of patients’ privacy. Sage Dental decided to wait until after she had given birth to fire her, and instead transferred her to its Parkland office.
Daneshpajouh was out of work for a week due to a pregnancy complication and was informed upon her return that she would be transferred to the Parkland office. However, the next day, management was notified that projected appointment revenue for that coming Friday had declined from $11,000 to around $6,000, which they attributed to Daneshpajouh’s poor behavior. This was the final straw, and Daneshpajouh was fired two days later.
After her termination, Daneshpajouh filed a lawsuit against her employer alleging pregnancy-based sex discrimination and retaliation, interference and retaliation in violation of the Family and Medical Leave Act, and whistleblower retaliation under the Florida Whistleblower Act. The district court granted the employer’s motion for summary judgment on all claims, which she appealed.
Do I have a claim for pregnancy discrimination after getting fired?
Best Employment Lawyer Answer: Pregnancy discrimination is a form of unlawful gender discrimination, which is unlawful under the Pregnancy Discrimination Act of 1978 (“PDA“) and Title VII of the Civil Rights Act of 1964. Under these laws, employers cannot treat women differently because they are pregnant, might become pregnant, or were pregnant. This applies to all aspects of employment, including hiring, firing, pay, hours, shift assignments, job assignments, promotions, layoffs, training, and benefits. In addition, after the birth of a child, parents – both mothers and fathers – are entitled to 12 weeks of job protected time off if the employee qualifies under the Family and Medical Leave Act (“FMLA“). (See Top FMLA Lawyer Reply: Am I Eligible For Medical Leave From My Job?; What Hours Count Towards My FMLA Eligibility?).
In the Daneshpajouh case, the Eleventh Circuit affirmed dismissal of her pregnancy discrimination claim, holding that the “evidence was undisputed that Daneshpajouh’s supervisors viewed her as ‘abrasive’ with staff and patients, and not ‘a team player,” and that “[o]f Sage Dental’s eleven offices, hers was the worst for patient retention and treatment acceptance.” Id. at. 9. It further explained:
whether Daneshpajouh was going to be transferred to the least profitable office or fired, the undisputed summary judgment evidence showed that Sage Dental decided to take an adverse employment action against her before she announced her pregnancy. Sage Dental could not have intentionally discriminated against Daneshpajouh if it decided on an adverse action before knowing about her pregnancy.
Id. (emphasis added).
So, the key takeaway here is that even if an employee is pregnant, if the employer was not aware of this condition, then it cannot be liable for wrongful termination based on that protected status. The same logic applies to disability discrimination — the employer must be aware of your disability to be liable for wrongful termination based on your disability. (Best Disability Discrimination Lawyer Answer: What Is My Job Required To Do Once I Notify Them Of My Disability?).
Do I have a whistleblower claim after getting fired?
Best Employment Lawyer Answer: Many states have laws that protect employees from being retaliated against or wrongfully fired for reporting unsafe or criminal activity at work. However, these whistleblower statutes usually require employees to follow very strict requirements to gain protection, which emphasizes the need to get advice from a qualified employment lawyer as quickly as possible.
For example, Ohio’s Whistleblower Statute, R.C. § 4113.52 expressly identifies precise procedures that an employee must comply with in order to gain statutory protection. Specifically, R.C. § 4113.52(A)(1)(a) addresses where an employee becomes aware of a violation of any state or federal statute that the employer has the authority to correct, and the employee reasonably believes that the violation either is a criminal offense that is likely to cause an imminent risk of physical harm or a hazard to public health or safety or is a felony. There are two important components to break down here. First, in order for the Whistleblower Statute to apply, the employer must have the ability to fix the violation. If the violation is outside the employer’s control, the statute will not apply. Second, the violation does not actually have to be a criminal offense that is likely to cause an imminent risk of physical harm or a hazard to public health or safety nor is a felony – only that the employee reasonably thinks that it is. To that end, the law encourages employees to protect what they reasonably believe is a criminal offense that is likely to cause an imminent risk of physical harm or a hazard to public health or felony and will not punish them for being wrong.
Under these conditions, pursuant to R.C. § 4113.52(A)(1)(a), an employee must both orally notify his or her supervisor or other responsible officer of the employer of the violation and then also provide that person with a written report sufficiently detailing the violation. Ohio courts have very strictly enforced these requirements, and the failure to properly comply can doom a whistleblower claim. An employee who fails to provide the employer with the required oral and written notification will not get statutory protection.
If the employee satisfies these requirements, and the employer does not correct the violation or make a reasonable and good faith effort to correct the violation within 24 hours following the earlier of the oral or written notification, whichever is earlier, the employee may then file a written report with the prosecuting authority of the county or municipal corporation where the violation.
Employers who retaliate against an employee who make a compliant report under the Whistleblower Statute will have violated the statute and be liable to the employee. (Best Law Read: What Is An Adverse Employment Action?).
In the Daneshpajouh case, the Eleventh Circuit also concluded that the employee could not prove a retaliation claim because the employer made the decision to terminate her before she engaged in protected activity. It explained:
“the undisputed summary judgment evidence showed that Sage Dental already planned to terminate Daneshpajouh before she engaged in any protected activity—before she complained about patient privacy, or her leave, or her transfer.”
Id. at 11 (emphasis added). Accordingly, the Eleventh Circuit also affirmed the dismissal of her retaliation claims.
In summary, even if you are a member of a protected class under Title VII — race/color, religion, gender/sex (including pregnancy and LGBTQ+ status) and national origin –- or the Americans with Disabilities Act (“ADA”) or the Age Discrimination in Employment Act of 1967 (“ADEA”), you can still be fired for poor performance or other improper conduct.
Best Law Reads:
- Yes, You Can Be Fired For Poor Performance And Unrelated Absences While Using FMLA
- Yes, You Can Be Fired For Forging Safety Documents
- Yes, You Can Be Fired For Bitching About Your Schedule And Showing Up Late
- Race And Gender Won’t Save Bad Employees From Being Fired
- Can I Be Fired For Poor Job Performance After Using FMLA?
- Can I Be Fired For Refusing To Do Work Outside My Job Description?
How do I know if I have a wrongful termination claim after being fired today?
Best Employee’s Rights Law Firm Answer: Before you take any actions regarding your potential employment discrimination or wrongful termination claims, your best option is to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Our Ohio, Kentucky, Michigan, and North Carolina employment discrimination attorneys are here to fight for your rights.
Disclaimer:
This employment discrimination law website is an advertisement. The wrongful termination, gender discrimination, and whistleblower retaliation materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. Do not rely on legal information provided herein as advice for your specific case. It would be best for to contact our top attorneys to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.