April 7 Tip of the Week

“Do Unto Others…”

A recent case involving a female student in an OB/GYN program in Michigan is instructive to employers who are involved in employee terminations.  In that case, Walker v. Ascension Genesys Hospital – Michigan, 2:23-cv-10198, (E.D. Mich.)(January 25, 2023), a jury awarded a medical resident over $10 million after she was terminated from the residency program, ostensibly for failing a licensing examination twice. 

A review of the facts of the case, however, demonstrates that the decision was not that straight forward.  The plaintiff, Nicole Walker, was admitted to the residency program in July 2019 and was initially required to sit for her licensing examination by December 2020.  The only problem was that this was in the heart of the COVID pandemic, which made it difficult for students to study and take the examination due to the restrictions that were in place during this time.  After her initial failure, Dr. Walker requested, and was granted, additional time to study and retake the examination.  The hospital gave her an extension to January 2021 for this purpose, with the expectation that she would successfully pass the licensing examination.  At the time that the extension was granted, the hospital knew that Dr. Walker was expecting and would be out on maternity leave when she was expected to retake the examination in January 2021.  Dr. Walker failed the second examination and was terminated from the residency program.  In June 2021, Dr. Walker took the licensing examination for a third time and passed it with a score of 536; the minimum passing score is 350.  Dr. Walker applied to be reinstated to the program; however, the hospital denied her request. 

Dr. Walker then sued the hospital’s residency program, claiming that she was subjected to disparate treatment on the basis of her pregnancy under the Michigan Civil Rights laws.  In her lawsuit, Dr. Walker claimed that she was treated differently from other residents who failed the examination, stating that she was not offered probation, remediation, or other assistance that had been made available to nonpregnant residents in the past.  After a two and a half week trial, the jury found in favor of Dr. Walker and awarded her $10.03 million.  In reviewing this case and the resulting jury verdict, employers can learn a number of lessons from the outcome. 

First, it is important to treat employees – even difficult or marginal employees – fairly and respectfully.  When dealing with employee issues, an employer can never go wrong by treating the employee in the same manner that they would wish to be treated.  An employer cannot let their antagonism or frustration with an employee infect their interactions with the employee. 

Second, an employer must treat all similarly situated employees similarly.  Employers will often get in trouble when exceptions are made – either on a positive or a negative basis – for employees.  While employers may believe that a poorly performing or difficult employee does not deserve the same treatment as an exemplary employee, an employer must be prepared to defend – by stating objective and legitimate business reasons – the differing treatment.  An inability to provide such a defense will likely lead to a negative outcome. 

Third, much like the first consideration, employers and their representatives must refrain from sharing their frustration with an employee through unfortunate comments or negative remarks.  In the Walker case, a doctor commented to Dr. Walker that being a mother would interfere with her ability to become a doctor and encouraged her to seek another path. This comment surely did not help the hospital’s defense.  An employer may be making a decision based on legitimate business reasons, but if a comment is made out of frustration or thoughtlessness during the process that could lead a judge or a jury to question the employer’s motivation, it is more difficult for an employer to defend against a discrimination claim.

Finally, an employer should not be afraid to reconsider the decision to terminate an employee when new information comes to light.  In the Walker case, the hospital refused to reconsider their decision to terminate Dr. Walker’s participation in the residency program, even though she scored highly on the licensing examination.  Part of this refusal was driven by the belief that the hospital’s residency program was highly regarded and could easily replace Dr. Walker with another high performing medical student.  An employer who is willing to reconsider their decision, in light of the facts of the situation, can often avoid a long drawn-out legal battle by giving the employee another chance. 

myHRcounsel can help employers through the difficult and complicated process of terminating employees and defending against claims of discrimination and disparate treatment by helping employers avoid these pitfalls.