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On the defense side we know that a jury is going to want to see that things were done, and when they weren’t, that’s problematic.

Megan Kures, JD

Partner, Hamel, Marcin, Dunn, Reardon, and Shea PC

When hospitals and medical practices face charges of discrimination from employees, the consequences can include litigation, large payments, morale problems, and lower quality care for the patients that they serve. How an employer responds can make all the difference in outcomes. Based on closed claims in the Harvard medical system, the following two cases illustrate that point, and offer some principles to follow.

In the first case that we’ll talk about, Carl was a 30-year data-entry veteran at the general hospital he started working for straight out of college. He worked his way up to become Director of Data Communication. He reported to the CIO, and received outstanding performance reviews each year. His boss retired, and the new boss was less supportive. In Carl’s first review with her, she complained that he talked too much. She would cut him off abruptly during conversations, and even pretend to cover her ears during meetings when he talked.

After several months, Carl reached out to the hospital’s Human Resources (HR) Department, but no one responded. When he required carpal tunnel surgery and went out on medical leave, Carl’s boss gave his work to two young colleagues with considerably less experience. She sent an e-mail saying she needed to give it to someone more reliable with fewer issues. Carl again reached out to HR, saying he was being treated unfairly because of his age and recent medical leave. HR opened an investigation, but Carl was terminated by his boss before it was concluded.

Carl filed a complaint with the state discrimination board, alleging age discrimination. The case was settled with a payment to the employee.

To discuss the legal risk issues in this first case and offer some guidance to employers, we are joined now by attorney Megan Kures. Ms. Kures is a partner with Hamel, Marcin, Dunn, Reardon, and Shea.

Q.) Megan, thank you for joining us.

A.) Thank you for having me.

Q.) In this first case, we saw a discrimination allegation against the hospital through a state agency, and a judgment against the hospital. The worker alleged age discrimination after he started working with a new supervisor. What do we see contributing to this negative outcome for the institution?

A.) Yeah, one of the things that is problematic with this situation (and it’s something we do see in these employment cases) is that anytime you have an abrupt change in an employee’s evaluations, it really raises a number of red flags with this employee. Out of the gate, when you have a new supervisor come in and all of a sudden there is an abrupt change in how this employee’s performance is perceived, it raises a lot of questions. And sometimes there are legitimate reasons for that. But when it’s simply that you have a new supervisor who’s in charge of this employee, that brings to mind whether there’s something more problematic underlying that change in perception.

And one of the other factors that seemed to come into play here is that there seemed to be some issues with the management style of the supervisor. And that, for any organization, can be problematic. Sometimes teaching managers how to manage or supervisors how to supervise can be tricky. And here, some of the things that the employee raised as being concerning from his perspective were things I think that any employee would find concerning. An allegation that the supervisor, for example, put her hands over her ears because she didn’t want to listen to what he had to say, that’s really not an effective management style and it’s certainly something that would be concerning and would bring to the forefront concerns of whether this manager had the appropriate skills to be able to manage those working underneath her.

Q.) What was in this case that made it an age discrimination?

A.) So anybody over the age of 40 falls into a protected category under Massachusetts law. So I would assume that the employee, the complaining employee, was over the age of 40 here.

Q.) What role did HR play in the need to settle the case?

A.) So the employee had originally, when these issues first arose with the new supervisor, had reached out to HR for assistance, and appropriately so, and for reasons that are somewhat unclear, HR did not respond to this employee’s concerns. So obviously, that’s a problem right out of the gate there, that there was no investigation done. And not even necessarily at this juncture an investigation per se, but to sit down with the employee to listen to his concerns and likely have a meeting with the supervisor as well. Sometimes these things can be very useful if there’s a simple misunderstanding between the employee and the supervisor and some solutions that can be worked out without too much effort on either side and a clearing of the air. So that sort of initial opportunity was missed here. And such steps are not always successful, but it’s important to see that that happened. What we find in these cases, particularly as we get on into litigation, is that what jurors are really looking for is they want to see that people were listened to and that they were treated fairly. So when there is somebody who is reaching out with the hope of having assistance from HR and to have their concerns looked into and addressed, we want to see that that was done. And ultimately, the way that we view these on the defense side is we know that a jury is going to want to see that those things were done, and when they weren’t, that’s problematic.

Q.) That’s an interesting point, because there’s almost a couple of really solid process things you can point to, which is, a) respond to the complaint and, b) don’t fire somebody in the middle of this process.

A.) Yeah, it’s really tricky. And I can’t say that there are no circumstances where you can fire somebody during an ongoing investigation. There are certainly offenses that are fire-able in any setting. Particularly in a health care organization, there are going to be things that would be justifiable in terminating someone. But in most instances, and absent sort of a really egregious set of circumstances, when you’ve got an ongoing investigation, you need that investigation to play out, you need that process to play out before you take any action as to that employee. And where that does not happen, that just really is going to complicate any ability to defend the case. It’s going to immediately take what may have originally just been a discrimination complaint and it’s going to add on a retaliation claim and very much complicate the whole process. We find oftentimes that cases that may be defensible on the discrimination side of things, they’re not on the retaliation side of things. So, in general, absent an egregious situation, once you have a complaint and an ongoing investigation, that process needs to play out before any other disciplinary action is taken against the employee.

Q.) Thanks, Megan. And we have a second case that turned out differently for the institution and they prevailed:

In this discrimination case, the worker was black and alleged racial discrimination. Throughout her employment as a patient service coordinator, Lisa received negative feedback from multiple supervisors about her poor attendance. She also was criticized for her interactions with colleagues and patients. Performance reviews from the last couple of years showed a 2.9 out of 5 rating, and 28 instances of tardiness or absence. Lisa was placed on administrative leave after she raised her voice in front of patients. Two months later she was terminated after more inappropriate interactions with patients.

Lisa filed a complaint with the state discrimination board, alleging the termination was because of her race. However, the hospital provided documentation that Lisa had been counseled about her attendance issues. The board dismissed the case, finding that the complainant failed to show that she had been adequately performing her job duties.

Q.) Megan, in the second case, the institution won and we can see some clear differences in the facts in how the complaint was actually managed.

A.) This case sort of shows some of the reverse of what we saw in the first case. So here we had an employee who had a history of poor reviews and a history of concerns. One of the things, and again, this relates back to the first case in some ways, is that on the defense side when we look at these cases, one of the things that we’re interested in seeing is patterns. So when an employee has a pattern of poor behavior, and in particular where that pattern of poor behavior has been brought to the employee’s attention, and presumably expectations have been put into place to improve the performance, that’s something that is beneficial for us to see. It’s not a situation where there’s an abrupt change from being a very well-respected and good-performing employee to one who is poor performing. Here this was sort of consistent throughout the duration of the employee’s employment, and some of the issues were a little different. There were some concerns related to attendance versus how the employee was interacting with others, but there were consistent concerns of some nature that would warrant some type of discipline or at least some type of response to try to correct the employee’s performance.

Q.) And of course, this appeared to be well-documented. What are the key steps that employers have to take when an employee’s performance review demonstrates a troublesome trend?

A.) Yeah, and that’s a great point. And it’s one of the things that I sometimes as a defense counsel in these cases find difficult is, oftentimes you will have a supervisor or even HR say, this employee has always been problematic. We’ve always had issues with this employee. And then you look at their personnel file and their reviews, and the reviews tell a different story. It’s one of the things that is the bane of defense counsel’s existence. We’ll meet with a group initially when a case comes in and talk about an employee. And everybody says, ’Oh, Megan, they were the worst employee, nobody liked them, they didn’t do their job well, we had to do this.’ And then you get their evaluations, and they’re glowing, and you can’t correlate the two. And how do you put that in front of a jury?

So it really is important to be honest and consistent with reviews. Nobody wants to be the bad guy. And I think sometimes people feel badly giving constructive criticism, but as the employer, it’s really going to help you to be able to give the constructive criticism and to also have that documented, and you’re doing the employee a favor as well. Most entities and most of the hospitals that I’ve worked with have written progressive disciplinary policies. And it’s important that those be followed so that if you have a situation with an employee who is having problems over time, that you can go back and demonstrate that these were raised with the employee and handled consistent with the progressive discipline policy. So you may have a written warning, you may have a verbal warning, you may have different corrective action plans that are put into place. And again, absent sort of an extenuating circumstance where there’s a real need to sort of jump over parts of that process, you want to follow that and to show that you followed that and put those pieces into play that you need to.

Q.) Thank you, Megan. Megan Kures is an attorney with Hamel, Marcin, Dunn, Reardon, and Shea.

I’m Tom Augello for MedMal Insider.


  • Megan Kures, JD

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About the series

Even in the safest healthcare setting, things can go wrong. For more than 40 years, CRICO has analyzed MPL cases from the Harvard medical community. Join our experts as they unpack what occurred and the lessons learned for safer patient care from the causes of these errors.


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