Yep, that’s what I said.
More on this after the jump…
When Rheanne met the unemployment line.
Rheanne Halker was a server at Bob Evans Farms.
Hey, speaking of restaurants and orgasms…
Anyway, Bob Evans Farms has an employee handbook. One of the rules in the handbook prohibits threatening or abusive language, malicious statements, or offensive or disorderly conduct.
A few years ago, the store’s general manager received a call from the assistant manager. The assistant manager reported that one of Ms. Halker’s co-workers complained that Ms Halker had shown her “an animated video on Plaintiff’s cell phone in which a woman was giving a man oral sex.”
So the GM investigated, during which he learned that Ms. Halker had also told various employees that while running on a treadmill she had one or more orgasms.
At her deposition, Ms. Halker, well, I’ll quote it verbatim. Enjoy:
Q Did you ever discuss with your fellow employees having orgasms when you were on the treadmill?
THE WITNESS: The answer is yes. I misunderstood the question.
Q How did you misunderstand the question?
A I just misunderstood. I don’t know.
Q Tell me about your conversations with your fellow employees about orgasms on treadmills.
A I just talked about it one time to Crystal. She thought it was funny and had to share it with the whole restaurant.
Q What did you tell Crystal?
A I told her to be quiet.
Q No. What did you tell Crystal about the treadmill?
A That I was up — I had a new membership at the Y. And I got on the treadmill for a mile, and I had a light orgasm. I mean how many people do that? I think that’s pretty cool.
Q Did you have any discussion — Did you have that discussion with anyone else?
Well, heck, it was only a light orgasm. Why is everyone so bent out of shape?
That’s employee misconduct, not FMLA interference.
My Your prurient interests aside, there’s a point to all this. You see, Ms. Halker sued Bob Evans for FMLA interference. Specifically, she claimed that — Hey, stop laughing! Yeah, you! The employee-rights attorneys too! Pay attention!
She claimed that Bob Evans discouraged her from taking leave to treat for an ailing shoulder, which both sides admitted was a serious health condition.
But then again, yeah, that whole orgasm thing. So, a federal court determined that Ms. Halker would not prevail [Editor’s note: At the last minute, I deleted a most inappropriate orgasm pun.
Not even with a strikethrough.]:
It does not ultimately matter whether Plaintiff purportedly reported that she had had multiple orgasms on the treadmill or simply one orgasm, just as it does not ultimately matter whether the oral sex image was a cartoon, a photograph, or a video. [Editor’s Note: Yeah, there was that too]. What matters is that regardless of Plaintiff’s initial lies and attempts at strategic descriptions and carefully parsed evasions (in her deposition in an a subsequent, impermissibly contrary affidavit), Plaintiff at times has admitted that she indeed revealed an oral sex image to at least one other employee and that she indeed told at least one other employee that she had a sexual experience on a treadmill. This violated company policy.
On their face, the foregoing incidents, both taken in isolation and considered together, present a lawful reason for terminating Plaintiff’s employment that does not present an interference violation of the FMLA.
I actually have a serious takeaway here.
That is, generally speaking, once an employee requests FMLA or engages in some protected activity (e.g., complaining about discrimination), it’s really tough to shoehorn prior misconduct into a basis for termination. There’s a reason we say “hire slow and fire fast.”
But, if you do learn of terminable conduct at or around the time of the leave request or other protected activity, don’t give the employee a free pass. Act on it! Otherwise, you’ll be setting a terrible precedent for future bad actors.
Now, if you’ll excuse me, I need to find a 24-hour YMCA…