The Law @ Work

Insubordinate Employee Can Proceed with Retaliation Lawsuit

Insubordination is typically defined as an employee’s willful disregard for a manager’s order.  It’s a very serious offense, and often leads directly to termination.  No passing go, no collecting $200 (unless it’s from the Department of Unemployment Assistance).

In discrimination and retaliation cases, insubordination is usually an employer’s best friend.   When the employee screams “unlawful termination,” the employer responds by giving justifiable reasons for letting the employee go.  The employer’s case is beefed up by providing evidence of a serious workplace violation.  In the next scene, the employee has to prove that this reason is false, or pretextual, and that the real reason was discriminatory or retaliatory in nature.  This is a tall hurdle when there is evidence that the employee disobeyed a manger’s order.   In other words, it’s tough to show that the employer is lying about its reasoning when it fires an employee for documented insubordination.

However, in a recent pro-employee decision from the First Circuit Court of Appeals, an insubordinate employee won at the summary judgment phase of her case, meaning she can go to trial on her retaliation lawsuit.  “How?” you might ask.  Well…

The employee worked in a correctional facility as a nurse.  Due to a serious injury from a horseback riding accident, she took a six-week leave of absence and returned to work requesting certain accommodations, including lifting and ambulatory restrictions.  The employee’s newly-appointed supervisor handled her return in a manner that makes employment lawyers cringe.  Among other things, he told her she would be fired if she didn’t return to work full-time, accused her of misrepresenting her injury, and questioned her use of a cane.  One member of management even told the employee that her supervisor “wanted her gone.”  The tension between the employee and her supervisor came to a head when the nurse came in to cover a night shift but expressed concerns over handing out certain medications.  The supervisor asked the nurse if she was refusing to hand out the meds, stating that it was a “direct order.”  The nurse persisted in her concerns and was fired for failure to carry out her supervisor’s instruction.

The employee sued, claiming the real reason she was fired was because she had requested accommodations.  Of course, the employer contended the real reason was her insubordination.   The court ruled that a jury should ultimately decide who is telling the truth and denied the employer’s motion to end the case short of trial.  The problem here was the employer’s hostile attitude when the employee returned from her leave.  The court concluded that a jury could find that even though the employee was insubordinate, the real reason she was fired was connected to her accommodation requests.

Bottom line:  be careful when managing disability leave or other accommodations.  Even employees who commit serious infractions are protected against discrimination and retaliation.  When the reason for letting them go is even a tad fuzzy, courts will often let the jury decide what your supervisor’s true motives were, which means a longer, more expensive lawsuit for the employer.

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