What Went Wrong? Worker May Sue Company that Fired Him for Texting Prostitutes

Bensalem, PA (WorkersCompensation.com) – When an employer investigates an employee to uncover wrongdoing, it should be wary of investigatory missteps that tend to spawn costly retaliation lawsuits.

A case involving a steel company in Pennsylvania outlines some of the things that can go wrong. In Canada v. Samuel Gross & Sons, Inc., No. 20-2747 (3d Cir. 09/15/22), a steel company decided to investigate a worker who had used FMLA leave and had filed an FMLA lawsuit. But the way it conducted its investigation suggested it was just trying to dig up dirt on the employee so it could justify firing him.

The worker sometimes to medical leave pursuant to FMLA because of a back injury. When he went on vacation, and sometime after he initially sued the company for FMLA retaliation, he left a cell phone in a company locker used for personal effects.

While the employee was gone, the company took the padlock off the locker, searched the text messages on the phone, and allegedly found evidence that the worker was soliciting prostitutes during work hours – a claim which the employee flatly denied.

The company said its reason for searching the phone was to determine whether it was company property, and that it fired the employee for misconduct based on the text messages.

The District Court dismissed the worker’s FMLA retaliation lawsuit, and the worker appealed.

On appeal, the 3d U.S. Circuit Court of Appeals explained that to proceed with the case, the employee had to show the company’s basis for firing him was a pretext for retaliation. One way the worker could do that was by successfully painting the company’s articulated reasons as weak, implausible, contradictory, or incoherent.

The court ultimately held that there was a genuine issue as to whether the company’s explanation was just a handy excuse to fire the employee. Accordingly, the court reversed the District Court’s ruling and effectively greenlighted the case to move forward.

Where did the company potentially go wrong?

The court relied on these pieces of information to determine that the company’s explanation didn’t quite hold up.

1. The investigation didn’t conform to company policy. The first piece of evidence that unraveled the company’s expressed reasons for searching the phone was its own employee conduct policy. The policy allowed for searches if the company "has reasonable suspicion that an individual is involved in misconduct.” “While [the company] alleges to have moved [the employee’s] locker because it obstructed the view of a surveillance camera, [company] employees could not provide any legitimate basis for searching [the worker’s] locker, let alone the cellphone inside the locker,” the court wrote.

2. An owner allegedly threatened the worker. One of the company's owners, approached the employee threatening that, if he did not drop his lawsuit, the company would find an employee who would contradict him. “The threat, made to intimidate [the worker] into dropping his lawsuit, further weakens [the company’s] argument,” the court wrote.

3. The explanation was implausible. The company’s claim that it searched the phone to determine if it was company property didn’t hold up. The court pointed that there were many easier, less intrusive, and far more reliable and appropriate ways for the company to determine whether the phone inside the locker was a company phone. For instance, the company could have reviewed its list of phones provided to employees and the phones’ respective serial numbers.

4. The company appeared to single out the employee for less favorable treatment. The court found that the worker established that the company treated other, similarly situated persons who had not used FMLA or filed FMLA complaints more favorably.

5. The search seemed more extensive than necessary. The court pointed out that the company searched more than a year's worth of personal text messages before discovering the messages for which the employee was allegedly fired. “The breadth of this search alone undermines the plausibility that [the company] was trying to see if the phone belonged to the company.”

Based on the above, the court found that a jury could reasonably find the company searched the phone to find an excuse to fire the employee for exercising his FMLA rights.

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