In Bashaw v. Majestic Care of Whitehall, LLC, 2025 WL 700169 (6th Cir. Mar. 5, 2025), Kirstyn Bashaw, a Director of Social Services at Majestic Care, alleged she was wrongfully terminated in retaliation for being a whistleblower and reporting patient-care concerns and sexual harassment by her supervisor.
While employed as Director of Social Services at Majestic Care, Bashaw raised concerns about patient treatment and her supervisor’s racially insensitive and sexually inappropriate behavior. Shortly after voicing these issues, Bashaw was fired. She then sued for wrongful termination under Title VII of the Civil Rights Act of 1964 and Ohio law for retaliation, claiming that her termination was retaliation for speaking up.
Federal anti-discrimination laws protect employees from unfair treatment and retaliation in the workplace. Title VII prohibits employers from discriminating against employees based on race, color, national origin, gender discrimination (including pregnancy, sexual orientation, and gender identity), and religion. It also protects employees from retaliation if they report discrimination, file complaints, or participate in an investigation. The Americans with Disabilities Act (“ADA”) expands these protections by prohibiting disability discrimination while the Age Discrimination in Employment Act of 1967 (“ADEA”) protects workers 40 years and older from age discrimination. If an employer offers justifications for termination, courts examine whether these justifications are consistent or whether they mask a retaliatory motive for firing the employee.
The United States District Court for the Southern District of Ohio dismissed Bashaw’s case, and the Sixth Circuit Court of Appeals agreed, holding that employers are allowed to fire employees who secretly record confidential and sensitive matters, skip work, come in late and announce that they are planning on leaving, including having already interviewed for other jobs.
Let’s examine each reason the employer offered and see why the Court upheld Bashaw’s termination.
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Can I Be Fired for Secretly Recording Conversations at Work?
Possibly, yes. Under Ohio law, known as a one-party consent state (Ohio R.C. § 2933.52), it is not illegal for individuals to secretly record conversations if they are a participant in the conversation. However, the legality of recording does not necessarily prevent an employer from taking disciplinary action. Employers can still terminate an employee if the employer has a stated policy against recording or the secret recordings undermine workplace trust or involve sensitive information. In Bashaw’s situation, secretly recording meetings containing sensitive health information regarding patient’s private medial information negatively impacted Majestic Care’s trust in her, which the Court found to be a legitimate justification for termination.
The Court emphasized this point clearly: “Bashaw’s surreptitious recording not only undermined Majestic Care’s trust in her, but Majestic Care reasonably believed they increased its risk of legal liability … these recordings ‘create mistrust’ and issues with ‘open communication.’” Bashaw at *5.
Employers rely heavily on trust. If you engage in activities that damage that trust, especially when sensitive information (like medical information protected under HIPAA) is involved, courts may support your employer’s decision to fire you.
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Can I Be Fired For Attendance Issues If Others Were Late Too And Not Fired?
Again, maybe. Bashaw argued she faced retaliation because other employees who were late to meetings were not fired. Under Title VII, disparate punishment for similar workplace violations can be evidence of employment discrimination or retaliation—but only if the employee can show that similarly situated coworkers engaged in comparable conduct and were treated more favorably. However, the record showed that over a six-week period, Bashaw was late or tardy to morning meetings 11 times and absent from work without prior authorization for eight and a half days.
The Sixth Circuit held that Bashaw failed to identify a valid comparator—someone who committed similar attendance violations but was not fired. The Court held: “Bashaw did not produce sufficient information about [other employees’] alleged absenteeism… to indicate whether the absenteeism… was of ‘comparable seriousness’ to the conduct Bashaw engaged in.” Bashaw at *5. This means that unless an employee can point to a similarly situated coworker who was treated differently, courts are unlikely to find that disparate punishment alone proves retaliation or discrimination. Under Title VII, disparate treatment occurs when an employer enforces a rule selectively against an employee while allowing others to violate it without consequence. Courts assess whether the alleged comparator: (1) worked under the same policies, (2) had the same supervisors, and (3) engaged in the same or similar misconduct but was treated more leniently. If an employer suddenly starts enforcing attendance rules strictly only after an employee engages in protected activity, that could indicate retaliation rather than a neutral policy enforcement.
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Can I Be Fired for Expressing Intentions To Leave My Job And Telling My Boss I’m Interviewing?
Yes. Employers can terminate employees who express a clear intention not to return to work or openly discuss plans to resign. Courts have recognized that an employer may reasonably infer that an employee actively seeking another job is not committed to their current role. Essentially, employers are not required to sit around and wait for an employee to quit if they know the employee is not planning on staying. In Bashaw, the Court held: “When an employee openly discusses interviewing for other positions and expresses dissatisfaction with their workplace, an employer may conclude that they are planning to leave and act accordingly.” Bashaw at *5.
Bashaw not only stated that she was actively interviewing elsewhere but also encouraged coworkers to join her in leaving, which further justified her employer’s decision.
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Do I Have To Disprove Every Reasons My Boss Listed For Firing Me To Win A Wrongful Termination Case?
Well, that depends. If your employer provides multiple legitimate reasons for termination that each would independently justify termination, you must present evidence disproving each of those independently terminable reason. As the Court explained clearly: “Where two or more alternative and independent legitimate, nondiscriminatory reasons are articulated by the employer, the falsity or incorrectness of one may not impeach the credibility of the remaining articulated reason(s).” Bashaw at *4.
In other words, even if you successfully challenge some of the employer’s stated reasons, your case will fail if just one legitimate, independent reason remains valid.
However, courts may take a different approach when an employer builds a case for termination by accumulating minor infractions over time—especially if the employer does not enforce those same standards against other employees. If an employer selectively applies discipline or suddenly begins documenting minor infractions only after an employee engages in protected activity, this could support an argument that the stated reasons are pretextual. Courts look at whether similarly situated employees were disciplined differently or whether the employer tolerated the same infractions from others without consequence. If an employer is inconsistent in how it enforces policies, an employee may have a stronger claim that retaliation or discrimination played a role in their termination.
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What Should I Do If I Was Wrongfully Fired Today From My Job?
If you’re dealing with, race, gender, national origin, or LGBTQ+ discrimination, retaliation, or wrongful termination, choose a law firm dedicated exclusively to employee rights. Spitz, The Employee’s Law Firm, is among the largest and most successful employment law firms in the country. Our attorneys offer free consultations, a no-fee guarantee, and have extensive experience fighting retaliation claims. Your employer chose to terminate you; now, choose a law firm that will stand by your side and fight for your rights.
Employment Lawyer Disclaimer
This wrongful termination and retaliation blog is for general informational purposes and should not be taken as legal advice about discrimination laws. Reading this employee’s rights blog does not create an attorney-client relationship. If you suspect that your boss retaliated against you for whistle blowing or reporting age or disability discrimination, consult a qualified employment lawyer immediately. Each employment case is unique, and past results do not guarantee future outcomes. Statutes of limitations apply, so act quickly. This employment law blog is an advertisement for legal services provided by Spitz, The Employee’s Law Firm.