I am NOT a Racist! And You “Created” My Performance Problems!

Darrell VanDeusen
Darrell VanDeusen

After 26 years, the Family and Medical Leave Act (FMLA) has pretty much reached the point where most cases rely on established jurisprudence.  There just is not that much new out there.   For example, if performance issues arise after an employee’s return to work they should be handled without regard to the employee’s use of FMLA leave.  An employee terminated after taking FMLA leave may claim retaliation and, when that occurs, the arguments offered by both sides are pretty predictable.

So, among these normal noises, it is unusual when I read a case with a “new” argument put forth by a plaintiff to support her FMLA retaliation case.  But I found one.  It made me shake my head and smile.  Lovelace v. Washington Univ. Sch. of Med., __ F.3d ___, 2019 U.S. App. LEXIS 22201 (8th Cir. July 25, 2019).

Sandra Lovelace was a Medical Assistant (MA) at the Washington University School of Medicine (WUSM) and Barnes Jewish Hospital (BJH), for whom she had worked since 2003.   She took FMLA leave in 2009 without incident.  In December 2014, she was moved from being regularly assigned to one doctor’s team to a “floating” MA assignment among different teams.  Almost immediately, Lovelace stopped coming to work, complaining of back pain.

Lovelace was placed on FMLA leave, with an expected return date after two months.  The day before she was to return, however, she notified her supervisor that she would not be able to return, and took another month off, returning in early March 2015.  During this time she had successful back surgery and returned two work at the end of her FMLA leave.  There were some work restrictions and accommodations necessary for her to perform her job, which were provided.

A couple of months after her return to work, some of the doctors to whose team Lovelace was assigned began to raise concerns about her performance.  One doctor stated that Lovelace “would refuse to do tasks, sometimes stating that she did not know how to do them,” and explained “that it was more challenging to get the work done with Ms. Lovelace than without an MA at all.”  Oof.

Lovelace received her annual performance evaluation, which reflected some concerns.  Then, a few months after that, a group of doctors and nurses reviewing team issues and came to the conclusion that Lovelace was not “prepared for the demands of the [MA] position.”

Along with this, there was a reported comment allegedly made by Lovelace that a black co-worker did not like working with white people.  Lovelace denied making the comment and claimed that her supervisors were labeling her a racist (the court noted that in deposition Lovelace admitted no one had called her a racist, but that may be beside the point).  She complained to HR about this, and added that she thought she was being retaliated against because she took FMLA leave.

A few weeks later, in late July 2015, when her supervisors went to her workstation to chat with Lovelace about some performance issues, Lovelace “flipped out” to use a non-legal term.  A witness said that Lovelace was “very unprofessional and disruptive . . . and out of control.”

As a result of this incident, Lovelace was terminated.  She sued, alleging among other things, FMLA retaliation, and retaliation under Missouri state law for “complaining about racial discrimination.”

The district court granted summary judgment on all claims.  The Eighth Circuit affirmed.  The two points that got my attention when reading this case?

First, the appellate court stressed that “Lovelace misunderstands what qualifies as racial discrimination by equating accusations of racist behavior with racist behavior itself.  However, ‘Missouri precedent interpreting discrimination on the basis of “race” are confined to evaluating whether an employer’s conduct constituted discrimination of an employee because of the color of [her] skin, as opposed to the substance of the employee’s beliefs (accurate or inaccurate) on issues relating to “race.”’ Shore v. Children’s Mercy Hosp., 477 S.W.3d 727, 735 (Mo. Ct. App. 2015) (second emphasis added).  While ‘falsely accusing someone of being a racist is morally wrong,’ such accusations cannot form the basis of an MHRA racial discrimination claim. Id. at 734. For purposes of the MHRA, accusing an employee of racism does not constitute racial discrimination.”   Given the amount of rhetoric these days in which “racist” has become a misused and overused term, there’s some food for thought.

Second, Lovelace alleged that her supervisors conspired against her to “create” performance issues justifying her termination. Her “proof” was that “she received positive evaluations during her prior years of employment with WUSM and BJH.  However, an employee’s prior satisfactory service does not insulate her from adverse consequences following a later lapse in performance.” And, said the court, “Lovelace presents no evidence that the performance and behavioral complaints voiced by her colleagues . . . were not genuine.   The take away here?  You need more than an assertion that everyone else made up your performance deficiencies – you were great, really – to get past summary judgment.


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