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.
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.
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.
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.