Lactation Accommodation Results in Misconduct Firing, Tenth Circuit Affirms

Here’s an interesting case that at first blush appears to be an accommodations case, but on a deeper dive is a workplace misconduct case.

In Spagnolia v. Charter Communications LLC, The Tenth Circuit Appeals affirmed the lower court’s decision that an employee could not sustain a claim under Colorado’s Anti-Discrimination Act (“CADA”) when she claimed she was fired in retaliation for making a request for lactation accommodations the employee requested after the birth of her second child. The Plaintiff employee was granted the accommodation but after her lactation breaks averaged two hours per day, the company changed its policy and began requiring employees to clock out before taking a pump break. Shortly thereafter, the employee met with her supervisor to discuss the change in the policy where she surreptitiously recorded the meeting. Secret recording of meetings violated the company’s internal policies and for this reason, she was later terminated.

The CADA requires employers to make a range of accommodations for their employees and to protect employees who complain about an employer’s compliance. The CADA follows the same standards as Title VII cases including applying the McDonnell-Douglas burden-shifting framework. Here, the employee argued that she engaged in protected activity under the CADA when she asked for lactation accommodations and that her termination constituted a materially adverse employment action that was in retaliation for her objection to the policy. The employer countered that it terminated her employment for secretly recording a private meeting which was a violation of company policies, was a legitimate, non-discriminatory reason for her termination.

The employee offered three arguments to show the employer’s rationale for firing her was pretextual. First, she argued that the company maintained a policy against firing workers for their first offense of recording a co-worker, but no such a policy existed. Second, the employee pointed out that another employee was not dismissed for recording one of their colleagues in 2018. However, she could not prove that the situation was a similar private conversation as this one was. Lastly, the employee claimed that there was no policy that prohibited her from recording co-workers, but it was in the company’s publication distributed to the HR executives. The publication stated that it is inappropriate to secretly record workplace conversations and such conduct would be considered unprofessional and prohibited. Furthermore, the company enforced the policy against at least four other employees prior to her termination. The Court found that the employee was not only informed of the policy prohibiting recording in the past but had a one-on-one meeting with her supervisor during which he “again told her that no one, including the employee, should be recording other employees at work.” In all, the employee failed to show that her termination was pretextual, and thus, the dismissal of her claim was affirmed.

Takeaways

Employers having clear written policies, following those policies, and documenting employee interactions can be the difference between liability and a defense verdict.  Here, the employer made the requested accommodations and followed its own written policies and practices regarding secret recordings by employees.  While not a landmark case by any stretch, it serves as a good reminder to employers of what to do, and how to do it.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.