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The Practical Employer

Employees Who Allegedly Take an Employer’s Stuff Without Authorization Don’t Win Discrimination Cases but Might Win Defamation Cases

Be careful what you communicate about employees and their terminations. Sometimes less is more.

Jason Shann worked as the Enterprise Desktop Management Team Leader in the IT department of Atlantic Health System.

He also suffered from tinnitus, a crackling and buzzing noises in his left ear caused by an Eustachian tube dysfunction. His tinnitus would flare up unpredictably, and, as it worsened, it caused him to suffer anxiety and depression.

As a result, he applied for, and was granted, a 21-day FMLA leave, and intermittent leave thereafter upon his return to work. Despite the intermittent FMLA leave, his tinnitus continued to worsen. Ultimately, he decided to take short-term disability leave, which he intended to roll into long-term disability and retirement.

Before leaving Atlantic Health, the company discovered that he had “removed” a plethora of computer assets from his workplace. According to the police report, he took four laptops, one iPad, three hard drives, one portable DVD-R/RW and RAM drive, one mouse and an AC adapter for one of the laptops. The company also discovered that he had used unauthorized third-party software to overwrite more than 27,000 files on the one hard drive he left at his desk.

Needless to say, Atlantic Health cut short Shann’s retirement plans and terminated his employment. It also emailed one of its computer vendors to advise that it had “launched an internal investigation to determine if Atlantic Health employee Jason Shann has been operating a side business performing computer support while on Atlantic Health time clock.”

The court had little difficulty concluding that Shann’s disability played no role in the termination decision:

It should be no surprise that “the removal of [Atlantic Health] equipment and software from the facility without authorization” could precipitate Shann’s termination. Atlantic Health’s employment policies unequivocally state that behavior that warranting immediate termination is “theft, misappropriation, or unauthorized possession of property belonging to Atlantic Health System.” Here, Atlantic Health’s corporate investigator reviewed security video tapes from August 16, 2011. In these videos, Shann is seen “carrying what looked to [be] computer hardware on both occasions.” …

Additionally, Atlantic Health terminated Shann for “the removal of proprietary hard drives from his workstation’s computer without authorization.” At his workstation, Shann had a desktop computer containing three hard drives. On August 16, 2011, Shann removed two hard drives from the desktop computer by “pop[ping] the case off, unplug[ing] it, and tak[ing] [them] out.” Shann did not ask for authorization before removing the hard drives and taking them home. …

Lastly, Atlantic Health also terminated Shann for using an “unauthorized … third-party program” to “overwrit[e] … over 27,000 files from his workstation’s computer.” Notably, the record indicates that the third-party program was run on August 16, 2011.

As a result, Shann lost his disability discrimination, and FMLA interference and retaliation claim.

The employer, however, was not able to convince the court to dismiss Shann’s defamation claim resulting from the post-termination comments made to its computer vendor.

What lessons can we learn from this case?
Employers must tread very carefully when communicating personnel decisions, or the facts underlying them, to third parties. The employer really did not have a compelling need to disclose its beliefs about Shann’s wrongdoing. And I’m not sure it disclosed anything untruthful (at least as the facts are presented in the case). But the court was not necessarily convinced and held that issue over for trial.
In other words, be careful what you communicate about employees and their terminations. Sometimes (most times), less is very much more.
Come back tomorrow for a discussion of the other issue in this case — whether the employer failed to accommodate Shann’s tinnitus.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.