Friday, September 6, 2013

"Protected Activity" No Shield for Insubordination - COTW #159

An employee in the Third Circuit learned a tough lesson: "P
rotected activity" may protect you from retaliation, but it doesn't protect you from termination for insubordination.

The employee noticed an error in her paycheck and notified the manager - who immediately cut her a check for the difference. Nevertheless, the employee emailed the Pennsylvania Department of Labor, and also complained to her supervisor noting that the employer could get in trouble. Perhaps a little overkill, but generally so far, so good - right?

Well, a co-worker complained that the employee was being disruptive that morning and . . . I'll, let the Third Circuit take it from here:
When [the employee] arrived at the Theatre that evening, [her supervisor] told her that she needed to speak with her immediately. [the employee] stated that she had a scheduled sales call at 6:00 p. m. and did not have time to speak with [the supervisor] at the moment. [The supervisor] continued to insist, and [the employee] finally said, “I'll eat your ass if you want me to, but I have to make this phone call first .” She then proceeded to make the telephone call. [The supervisor] told [the employee] she was fired and tried to remove the phone receiver from [her] hand.
Garges v. People's Light & Theatre Co., 13-1160, 2013 WL 3481723 (3d Cir. June 28, 2013). And so she was fired.

Her response? A lawsuit under the FLSA, Title VII, and the Equal Pay Act. The result? She lost because she "did not show that the Theatre's reason for terminating her—insubordination—was a pretext for discrimination." Lesson learned.

HT: Janine Gismondi via the August 2013 Pennsylvania Employment Law HR Specialist.