Document business reasons for staffing moves

Document the timing and explanation for all employment actions. It’s hard for employees to win lawsuits over transfers, demotions or discharges when the employer has records showing objective business reasons for the move.

Recent case: Bernice worked as a health services administrator at New York City’s Rikers Island correctional facility for more than 20 years. She generally performed well, earning several promotions. Bernice has diabetes and when her blood sugar levels gets too high or too low, she becomes disoriented or confused. When that happened, she would delay her morning commute until she could get the sugar levels under control.

She used intermittent FMLA leave to cover the late arrivals. Over a five-year period, she was late to work 232 times, of which 40 instances were recorded as FMLA leave, 49 as sickness and the other 121 as simply “late.”

The city undertook a review of the Rikers Island health care program, and the contractor for which Bernice worked looked for ways to improve. Managers decided the job Bernice held should be converted into a clinical position, so the person in charge would be familiar with actual delivery of medical services. Bernice didn’t have a clinical degree, so she was terminated.

Bernice sued, alleging that she had complained five months earlier that her supervisor viewed her FMLA usage negatively. She said her termination was retaliation for exercising her rights under the FMLA.

But her employer had documented the need to change the program based on pressure from the city and its own assessment that it would function better with an administrator who held a clinical degree. That was enough for the court to conclude that there was no connection between Bernice’s complaint and her discharge. (Forrester v. Corizon Health, ED NY, 2017)