Employee may have been fired for increased use of leave, not spending too much time in bathroom

Although an employee could not show she was fired—purportedly for spending too long in a bathroom—because of her age (53) or a disability, and thus those claims were dismissed on summary judgment by a federal district court in Louisiana, her FMLA claim survived her employer’s motion. A general manager’s declaration that the employee was observed spending excessive time cleaning a restroom did not explain who observed her, how she was observed, or how this was reported to the GM, and thus the court could not determine if the GM had the requisite personal knowledge. Further, the employee produced sufficient evidence of pretext, including doubt that she actually engaged in the underlying infraction; a decade long history of satisfactory performance; and close temporal proximity between her use of FMLA leave and her termination.

The employee began working as a casino housekeeper in 1997 and continued working as a custodian when the property was acquired by Sam’s Town Hotel and Casino in 2004. Assigned to the graveyard shift, she typically worked from 11 p.m. to 7 a.m. In July 2013, she began taking approximately one day of intermittent FMLA leave per month but by the time she was fired in March 2015, she was using four to six days per month.

Anonymous complaints.

In February 2015, Sam’s Town began an investigation into its graveyard shift after it received two anonymous complaints detailing employee misconduct. As a result, nine workers, including the employee, were fired.

Age discrimination.

The employee first argued that her termination at the age of 53 was based on unlawful age discrimination in violation of the ADEA. Sam’s Town argued, however, that while several custodians were hired in the six-month period after she was fired, none were hired to specifically replace her. Observing that of the five custodians hired during that period of time, four were within the protected class and two were older than the employee, and that she admitted she had no evidence she was discharged because of her age, the court found she failed to make her prima facie case of age discrimination.

Disability discrimination.

Nor could the employee establish a causal nexus between her termination and her claimed disability, said the court, noting she admitted in her deposition that until the time she was terminated, she experienced nothing she considered to be discriminatory at her workplace.


As to her FMLA claim, she alleged she was certified by her doctor to take intermittent leave in 2013 and that over time, she increased the amount she was using. She was fired, she suggested, because she continued to have health problems, continued to require medical leave, and her doctor would likely have extended her FMLA certification for another year.

To establish a causal connection, she relied on the “very close” proximity between her use of leave and her termination. She claimed she took FMLA leave on March 7, was suspended due to the investigation three days later, took an additional three days of leave during her suspension, and was terminated on March 14.

Too much time in the bathroom.

For its part, Sam’s Town argued that during the investigation into the two complaints, it discovered that the employee had spent over two and a half hours in a restroom during her shift, which constituted wasting time, loitering, and unsatisfactory job performance. In support of this assertion, Sam’s Town relied solely on the GM’s declaration, which the employee challenged in a motion to strike, arguing that the GM did not provide the date of any observation and never averred that she actually a film of the employee committing the violation or witnessed the employee committing the violation. Thus, the employee argued, it was not based on personal knowledge.

Granting the motion to strike as to the challenged part of the declaration, the court found it did not provide the necessary factual support for it to determine that the GM had the requisite personal knowledge. The GM did not explain who observed the employee, by what means she was observed, or how this information was reported to her. Because this was the only evidence proffered by Sam’s Town to explain why it terminated the employee, it failed to provide a legitimate, nondiscriminatory reason for the adverse action.

Pretext evidence.

Even if it were to consider the declaration, Sam’s Town would still not be entitled to summary judgment, said the court, noting that the employee presented sufficient evidence of pretext. In addition to denying that she committed the act for which she was fired, she asserted that she was never allowed to see any surveillance video showing her spending two and a half hours in the restroom. Nor was she was named in either of the two anonymous complaints although at least nine other employees were and, she alleged, she was the only one who was fired after the investigation who was not named in the complaints. She also asserted that throughout her entire employment, she never received any disciplinary action or warning for poor work performance and her performance evaluations were always satisfactory. This, said the court, was difficult to reconcile with the listed reason in her separation notice that she was fired due to “repeated performance related breakdowns.”

Reasonable belief.

As to the employer’s argument that it reasonably believed she spent that time in the restroom and acted on that basis, the court noted the two complaints, neither of which named the employee, and the GM’s declaration, which simply stated that the employee “was observed” spending two and a half hours in the restroom. Confronted with such “scant evidence,” the court could not say Sam’s Town reasonably believed the employee spent that time in the restroom and acted on that basis.

SOURCE: Miller v. Red River Entertainment of Shreveport, LLC (W.D. La.), No. 16-1256, February 7, 2018.
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