Court Sides With EMT in Love Triangle, Says Her Firing May Have Been Retaliatory

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Keen v. Reg'l Emergency Med. Servs. of Ga. Inc., M.D. Ga., No. 7:11-cv-00106, 10/15/12

  • Key Holding: Employee provided sufficient evidence to show she was terminated because she complained about being punished more harshly than a co-worker for the couple's affair, rather than because she came to work intoxicated.

  • Key Takeaway: Unclear whether co-worker is considered “similarly situated” for disparate treatment purposes given that his wife also works for the employer.

By Chris Opfer

An emergency medical technician who had an affair with a co-worker whose wife also worked for the company provided enough evidence to show that she may have been fired for complaining that the co-worker was not similarly disciplined for his role in the relationship, the U.S. District Court for the Middle District of Georgia ruled Oct. 15 (Keen v. Regional Emergency Med. Servs. of Ga. Inc., M.D. Ga., No. 7:11-cv-00106, 10/15/12).

Donna Keen was given the option of resigning or being fired after co-worker Laura Clanton complained to Regional Emergency Medical Services of Georgia Inc. (REMS) management that Keen was having an affair with Clanton's husband, Lee. Keen later was fired when she complained that Mr. Clanton was not presented with the same ultimatum.

Denying the company's motion for summary judgment on Keen's retaliation claim under Title VII of the 1964 Civil Rights Act, the court found an issue of material fact as to whether she was fired for complaining about the differential treatment.

While REMS claimed that Keen was terminated because she arrived to a scheduled shift drunk and unable to work, witnesses testified that Keen was not intoxicated, but chose not to work because she was upset about the company's handling of the affair.

In an opinion by Judge Hugh Lawson, the court nevertheless granted summary judgment to REMS on Keen's claim alleging that Ms. Clanton refused to certify Keen for a paramedic examination in retaliation for her complaint about the unequal treatment. Any retaliation by Ms. Clanton against Keen was a result of Keen's relationship with Clanton's husband, not in response to protected activity, according to the court.

'Consensual Affair'
Keen began working for REMS in 2008 and was employed as an EMT when she and Mr. Clanton, who also worked for REMS, began what Keen called a “consensual affair.”

Ms. Clanton, who was responsible for training and certifying EMTs and paramedics at REMS, learned about the affair after Keen talked openly about it with other co-workers.

On July 16, 2010, company President Ben Jackson called Keen, telling her that Ms. Clanton had demanded that she be fired. Clanton denied making the demand. Jackson nevertheless informed Keen that she could resign or be terminated, telling her that she could not work for the company as long as Ms. Clanton continued to be employed by REMS.

Keen said she preferred to resign and agreed to work her previously scheduled shift the following day. “But distraught over the end of the affair and her job, Plaintiff had one too many drinks at a friend's house and got sick,” Lawson explained.

A co-worker eventually took Keen to a REMS ambulance station where she was treated with a saline solution IV. When she woke up at the station the following day, Keen decided that she did not want to work her final shift. She obtained permission to call a replacement, who arrived and worked in her place.

Shift captains Joseph Leverett and Apondrea Marshall were present at the station on the morning of Keen's final shift. They testified that she was not intoxicated, but rather upset about the situation, and could have completed the shift if necessary.

Keen called Jackson July 18, 2010, arguing that she should not be forced to resign since Mr. Clanton had not been punished for his role in the affair.

Two days later, she met with Tony Willis, the company's owner, and Tracy O'Neal, a human resources officer. Despite arguing that she had done nothing wrong, Keen was fired at the close of this meeting.

Willis later testified that the company ultimately fired Keen because she came to work intoxicated and missed her final shift, not because of the affair with Mr. Clanton.

Keen asserted that following her termination, she was unable to earn paramedic certification. Although Keen had completed the required training, Ms. Clanton allegedly refused to confirm that she was qualified to sit for the examination.

Keen sued REMS, alleging disparate treatment and retaliation claims under Title VII related to her termination and Ms. Clanton's alleged refusal to certify Keen for the paramedic examination.

'Sufficient Doubt' Established
Keen cast “sufficient doubt” on the company's claim that she was fired for showing up to work drunk, the court ruled. This could allow a jury to conclude that she was actually terminated for complaining that Mr. Clanton was not punished for his role in the affair, the court said.

It was unclear whether Mr. Clanton was disciplined for the affair. The record did establish, however, that Keen complained to Jackson and Willis that she was being treated differently than Mr. Clanton, the court found. She was terminated shortly after these complaints.

While REMS argued that Keen was fired for arriving at the ambulance station intoxicated, two of her superiors--Leverett and Marshall--testified that she was not drunk at the time of her shift and could have worked if necessary. Neither Willis nor Jackson was at the station prior to Keen's scheduled shift and thus neither had personal knowledge of her intoxication, according to the court.

Evidence further showed that Keen arranged for a co-worker to take her shift and that the co-worker filled in for Keen without incident.

The court also found no evidence in the record supporting REMS's claim that Keen was on probation at the time of the incident. “Her personnel file was not submitted, and there are no written notices or warnings in the record demonstrating that Plaintiff was on probation at any time,” Lawson wrote. “It is also notable that there is no written documentation in the record outlining why Plaintiff was terminated.”

The court further noted that REMS did not move for summary judgment on Keen's disparate treatment claim.

Affair Not Protected Activity
On the other hand, Keen failed to show that Ms. Clanton also retaliated against her for engaging in protected activity by refusing to certify Keen for the paramedic exam, according to the court.

“To be quite blunt, even assuming Laura is acting improperly in some fashion against Plaintiff, it is because Plaintiff had an affair with Laura's husband, not because Plaintiff complained to Willis or Jackson about the differential treatment,” Lawson explained.

Indeed, the court found that Ms. Clanton's adverse action against Keen began before Keen lodged her complaints with Willis and Jackson.

“The timing does not work,” Lawson wrote. “It is impossible to retaliate for something that has not yet happened.”

Keen was represented by Marie A. Mattox and James P. Garrity of Tallahassee, Fla. Jason B. Moon of Valdosta, Ga. represented REMS.

By Chris Opfer

Text of the opinion is available at /uploadedfiles/BNA_V2/Images/From_BNA_V1/News/Keen(1).pdf.

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