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D.C. Circuit Sticks Fork In Cook’s Retaliation Claims

“Patience is a virtue,” the saying goes.  That principle was put to the test recently in a case before the United States Court of Appeals for the D.C. Circuit involving a long-tenured hotel cook who was terminated after being given (more than) his fair share of chances over the years.  Johnson v. Interstate Mgmt. Co., LLC, No. 14-7164 (D.C. Cir. Mar. 3, 2017).

Robert Johnson worked as a cook at a Washington, D.C. hotel from 1996 until 2011.  In the last four years of his employment alone, Johnson served up a  smorgasbord of company policy violations, including:

  1. incorrectly filling out his time sheets;
  2. violating the company’s anti-harassment policy;
  3. leaving water running in the kitchen;
  4. cleaning floor mats inside cooking pots;
  5. working for less time than suggested on his time sheets;
  6. creating cross-contamination hazards while preparing meat;
  7. following improper procedures for thawing fish;
  8. using the wrong ingredients when preparing meals;
  9. undercooking chicken served at a 250-person banquet, and cooking vegetables without removing the product stickers;
  10. thawing frozen chicken in a sink;
  11. improperly cooling soup; and
  12. setting off a fire alarm by allowing too much smoke to accumulate in the kitchen grill.

In February 2010, Johnson complained to the Occupational Safety and Health Administration (OSHA) about what he claimed were unsafe working conditions, and the hotel’s management company was ultimately fined $34,200.  (Johnson had also previously filed EEOC charges in 2005, 2007, and 2010 alleging various violations of Title VII, the ADA, and the ADEA, apparently without incident.)

Roughly a year after Johnson’s OSHA complaint, the company’s patience with Johnson’s errors finally boiled over after a thirteenth infraction.  In February 2011, a hotel employee discovered a melted piece of plastic wrap underneath the breading of a piece of chicken that was served for dinner.  When the subsequent investigation led to Johnson as the culprit, he was terminated for “repeated performance failings,” culminating in the chicken incident.

Johnson then sued, arguing that he was really fired because of his OSHA and EEOC complaints over the years.  (His claims were almost poetic, given that, to paraphrase the common expression, retaliation is a dish best served cold.)  The district court granted summary judgment in the company’s favor because the Occupational Safety and Health Act does not provide for a private right of action (i.e., does not allow individuals like Johnson to sue) and because there was no evidence that the company was lying about the legitimate, non-retaliatory performance deficiencies that led to the termination.

The D.C. Circuit affirmed.  As the Court observed, Section 11(c)(2) of the Occupational Safety and Health Act (11 U.S.C. § 660(c)(2)) authorizes employees to file complaints with the Department of Labor (DOL) within 30 days of a purported violation, and the DOL subsequently to bring a lawsuit.  It does not, however, state that employees may proceed directly to court by themselves.  “[U]nless and until Congress acts” to change this, the Court stated, “our hands are tied.”

Johnson’s other retaliation claims fared no better.  Though, unlike the Occupational Safety and Health Act, the other statutes (Title VII, the ADA, and the ADEA) permit private lawsuits, Johnson failed to provide evidence that unlawful discrimination – as opposed to his well-documented performance issues – was the real reason for his firing.  As the Court explained, “Johnson does little” to rebut the 13 alleged infractions cited by the hotel “aside from claiming that he did not commit the infractions and pointing to the fact that he did not sign the infraction reports.”  Indeed, “[i]f anything,” the Court noted, “the record suggest that [the employer] was exceedingly patient with Johnson’s pattern of workplace errors.”  Judge Millett wrote separately to explain that she also ruled in the employer’s favor, but on narrower grounds.

So what are the tips to take away from this case: (1) maintain appropriate and current policies, (2) carefully document performance issues and maintain those records in employees’ personnel files, (3) make sure that employees being given written disciplinary actions (warnings, performance improvement plans (PIPs), and the like) have the chance to read, understand, and ask questions about their shortcomings, (4) if they refuse to sign, the employer representative present during the meeting should note and date the document itself accordingly, and (5) when dining in a restaurant, don’t think too much about what goes on in the kitchen.

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