Worker Fired for Disrespectful E-Mails To Boss, Not National Origin, Age Bias

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By Patrick Dorrian  

Jan. 31 --An Illinois hospital worker did not show that she was terminated for being Puerto Rican and 55 years old, rather than for repeatedly sending disrespectful e-mails to her supervisor, the U.S. Court of Appeals for the Seventh Circuit ruled Jan. 30 (Zayas v. Rockford Mem'l Hosp., 7th Cir., No. 13-2555, 1/30/14).

The court found evidence that Margarita Zayas was warned a number of times to stop sending Larry Griesman, her direct supervisor at Rockford Memorial Hospital, e-mails that Griesman believed were “negative, unprofessional and disrespectful.”

Zayas's failure to heed those warnings undercut her ability to establish a prima facie case of national origin discrimination under Title VII of the 1964 Civil Rights Act or of age bias under the Age Discrimination in Employment Act, the court ruled.

Judge Richard D. Cudahy said the hospital's disciplinary actions toward Zayas based on her e-mails to Griesman rendered the former ultrasound technician unable to prove that she was meeting her employer's legitimate performance expectations at the time of her April 2011 discharge. Satisfactory job evaluations Zayas had received in 2008 and 2009 were insufficient to overcome the hospital's more recent marks against Zayas's performance, Cudahy said.

Comparator Evidence Lacking

Zayas also failed to identify workers outside of her protected classes who hadn't sent similarly unprofessional communications to their bosses and were treated more favorably than Zayas, the court added.

Nor did she show that her e-mails to Griesman were just a pretext for national origin and age bias, the appeals court said, affirming a lower court's grant of summary judgment to the hospital on Zayas's discriminatory discharge claims.

The appeals court found that summary judgment also was proper on Zayas's claim that she was subjected to a hostile work environment based on her national origin. She cited only two incidents that bore any relation to her national origin, the court said, and one involved a comment by a co-worker--rather than a supervisor--that wasn't specific to Zayas's Puerto Rican ethnicity and the other incident involved a comment made by Zayas herself.

She also didn't demonstrate that the alleged harassment was objectively hostile, Cudahy added. “Zayas offers only a short and exhaustive list of allegedly hostile occurrences over her long employment at the Hospital,” the judge wrote. “This list falls short of showing the kind of systematic discriminatory behavior that hostile work environment claims require.”

Repeatedly Warned About E-Mails

According to the opinion, Griesman hired Zayas to work at Rockford Memorial in 1999.

In April 2010, a human resources employee and Griesman held two meetings with Zayas, during which she was warned about sending Griesman e-mails that “were perceived as negative, unprofessional and disrespectful towards her managers and peers.”

When Zayas continued to send Griesman similar e-mails, he issued a formal written warning to her in July 2010. She nevertheless sent Griesman “three more equally unprofessional” e-mails, the court recounted.

Griesman responded by discharging Zayas April 22, 2011. At the time of her termination, Zayas was the oldest ultrasound technician at the hospital.

Zayas sued Rockford Memorial under Title VII and the ADEA. In addition to alleging that she was fired based on her national origin and age, she claimed that she was subjected to a hostile work environment based on her national origin.

As evidence of the alleged harassment, Zayas pointed to incidents in which:

• Griesman singled her out during a meeting by saying, “you think everyone is out to get you.”

• A co-worker “almost got physical with her” and told her that she should quit.

• A co-worker posted a poem about “firing trouble” above Zayas's locker.

• All of the other technicians got up and left when she walked into an office.

• Several technicians called her “Maria” despite her request that they not do so.

• When Zayas asked a co-worker if a patient had been provided with a Spanish translator, the co-worker replied, “if they are in this country, they need to learn to speak English.”

• Zayas attempted to move an ultrasound machine but was blocked by a co-worker from doing so.

• A co-worker exited a room without closing the door, causing Zayas to comment, “Why aren't you closing the door? Is it because I am Puerto Rican?”

 

The U.S. District Court for the Northern District of Illinois granted summary judgment to the hospital on all claims. Zayas appealed.

Discharge Claims Undercut by Warnings

Cudahy said Zayas brought her discriminatory firing claims under the indirect method of proof. But she couldn't establish a prima facie case, he said, because she was unable to show that she was satisfying the hospital's legitimate job expectations at the time of her discharge or that similarly situated employees outside of her two protected classes were treated more favorably.

The court said Zayas cited satisfactory performance appraisals she had received for 2008 and 2009 as proof that she was meeting Rockford Memorial's legitimate expectations. But her reliance on those performance reviews was misplaced, the court found.

“The question is not whether she ever satisfied the Hospital's expectations, but whether she met the Hospital's expectations at the time she was fired,” Cudahy wrote. Moreover, he added, the analysis of an employer's legitimate expectations doesn't focus solely on whether a plaintiff's actual performance was satisfactory, but also considers additional factors such as the plaintiff's insubordination and issues of workplace camaraderie.

“In any event, Zayas' performance evaluations do not overcome the more recent disciplinary actions imposed on her,” the appeals court held. It said “the paper trail of emails, disregarding Griesman's written warning, indicates that Zayas was not meeting her employer's expectations in the year before her termination.”

On the similarly situated employee-prong of the prima facie test, the court found that Zayas lacked evidence of a suitable comparator. It said she needed to identify a co-worker who isn't Puerto Rican or was under the age of 40, and who engaged in similarly unprofessional behavior but wasn't disciplined.

“Instead, Zayas makes broad assertions that she was treated differently because other ultrasound technicians were not 'subject to similar harassment,' 'singled out,' and 'subjected to unwarranted discipline.' Such broad conclusions are insufficient to satisfy this prong of the test,” the court said.

It also was unpersuaded by Zayas's attempt to show that the issue of her e-mails to Griesman was a mere pretext for the hospital's discriminatory animus. The issue isn't whether an employer's stated justification for an employment action was accurate or fair, but whether it was the actual reason for the decision, the court said.

“Thus, it is irrelevant if Zayas' emails were not egregious enough to justify her termination, as long as Griesman believed they were,” Cudahy said. “Zayas offered no evidence to show that Griesman lied about his reaction to the emails.”

Harassment Claims Also Failed

Zayas's hostile work environment claim failed because she didn't connect her national origin to the incidents of alleged harassment and any harassment she may have experienced wasn't objectively hostile for purposes of Title VII, the appeals court ruled.

The court said out of the incidents cited by Zayas, only two related in any way to her national origin, and one of those incidents involved her raising the issue of her Puerto Rican ethnicity. The other incident, which involved a co-worker's remark that people living in the U.S. need to learn how to speak English, also didn't bolster Zayas's claim, the court decided.

“Though the remark may have been insensitive, the district court correctly found that this was an isolated incident that occurred two years before Zayas' termination and was derogatory to non-English speaking immigrants, rather than Puerto Ricans specifically,” Cudahy wrote. And Griesman promptly addressed the situation with the worker who made the remark, the judge said.

“The rest of Zayas' allegations lack any clear connection to her national origin. While such a connection does not have to be explicit, there must be some connection,” Cudahy added.

Moreover, the incidents cited by Zayas, even in the aggregate, weren't severe or pervasive enough for a reasonable worker to find them objectively hostile, the appeals court affirmed.

Judges Ilana Diamond Rovner and Diane P. Wood joined the opinion.

Joseph K. Nichele of Broida & Associates in Naperville, Ill., represented Zayas. Alan S. King of Drinker Biddle & Reath in Chicago represented the hospital.

 

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com


Text of the opinion is available at http://www.bloomberglaw.com/public/document/Margarita_Zayas_v_Rockford_Memorial_Hospital_Docket_No_1302555_7t.