crossposted from unbossed
Read enough cases involving employee rights and you have to wonder whether employers ever consider the costs to themselves for firing workers. When you see a case like Johnson v. Kmart, No.07-14393 (E.D. Mich. Jan. 7, 2009), you have to conclude that the answer is: No. You’d think Johnson worked for Simon Legree, Inc.
It’s hard to imagine a more sympathetic case. Here you have Johnson rushing to the emergency room because his son’s eye had been injured and was bleeding. Kmart fired Johnson because taking time off put him over the allotted absences allowed. Here’s what the Judge’s decision says:
On Saturday, February 17, 2007, Johnson was scheduled to work from 2:00 p.m. until the store’s closing at 10:00 p.m. At 1:30 p.m., as he was preparing to go to work, Johnson received a call from his wife’s cousin, Holly Abernathy, who was watching the Johnson children. Abernathy told Johnson and his wife, Gloria Johnson, that their six-year old son Eddie had been hurt by Abernathy’s dog; Eddie’s eye had been cut by the dog and was bleeding.. . .
Pursuant to a Kmart policy regarding unexpected absences, Johnson called the store and notified assistant store manager William Talley that Johnson had to drive his son to the emergency room, that he would not be able to make his shift, but that he would try to get to work later if he was done at the hospital in time.
Talley told Johnson not to worry about it, but to "get your son to the hospital." The Johnsons first took Eddie to Clarkston Ambulatory Center, which was close to the Abernathy house, but the ambulatory center refused to see Eddie because the Johnsons did not have Eddie’s insurance card with them. The Johnsons then took Eddie to the emergency room at St. Joseph Mercy Hospital in Pontiac, Michigan.
The doctors there diagnosed Eddie with a "left subconjunctival hemorrhage" and wrote that he appeared to have a "ruptured globe in the medial portion of the eye." The doctors felt that Eddie needed to be seen immediately by an ophthalmologist at Beaumont Hospital, in Royal Oak, Michigan. Eddie was then driven to Beaumont hospital by his parents where he was seen by the ophthalmology resident at Beaumont. The consultation form for the ophthalmologist indicates that Eddie was being seen because of a possible ruptured globe.
The diagnosis of the ophthalmology resident was that Eddie had a subconjunctival laceration (a cut on the white portion of the eye) and a subconjunctival hemorrhage ("a collection of blood on the white portion of his eye surrounding the laceration"). The ophthalmologist concluded that Eddie did not have a ruptured globe. The ophthalmologist gave Eddie an eyepatch and told the Johnson to keep the eyepatch on Eddie for 24 hours except when they were administering his antibiotics. The ophthalmologist discharged Eddie with instructions for him to return for a follow-up appointment, and for his parents to call sooner if he showed a decrease in visual acuity, or an increase in pain or any spots, curtains, or flashes.
Eddie was discharged from the hospital and the Johnsons returned home at approximately 8:00 p.m that night. Johnson did not report back to work for the final two hours of his shift ending at 10:00 p.m.
The following day, Sunday, February 18, Johnson worked the entire day as he was scheduled to do.
A few days later Johnson was fired for missing work.
Kmart’s Incompetence
The decision shows that Kmart seems to have a personnel department and supervisors who have no clue how to follow company rules, how to do follow up, how to document absences, how to do the most minimal things that companies need personnel offices and supervisors to do. They told Johnson he could bring in his paperwork later, that they didn’t need it, that he could feed it to his dog, essentially. Until they fired him for having no proof there was a serious medical problem.
Johnson testified that he spoke to the store HR manager Kim Matthews about taking his son to the emergency room the previous day and that he showed her pictures of his son’s eye injury. Johnson also told Matthews that he had paperwork from the hospital if she needed it, but Matthews told Johnson "don’t worry about it." Matthews testified that Johnson told her he had a doctor’s note, but that she told him to bring it in the next time he worked. Matthews.
She testified that she never followed up with him about it because that was management’s responsibility. Jeanette Streetman, the store "coach", or manager, testified that Matthews told her that Matthews had requested documentation from Johnson because he said he was in the emergency room, and that Matthews had waited for the documentation but never received it.
Apparently, no one from Kmart notified Johnson that his absence might be protected by the FMLA.
Matthews notified Streetman that Johnson’s absence on February 17 was his sixth point under the Kmart absence control policy.
According to Matthews, Streetman questioned whether Johnson should receive an infraction point because "he said his son got bit," but Streetman testified that she never suggested or acted upon the possibility that Johnson’s absence was protected by the FMLA.
Streetman contacted Joe McCreery, the Kmart district "coach" and asked his approval of the decision to fire Johnson for his sixth infraction. Streetman never told McCreery the reason Johnson had given for his absence and never suggested to McCreery that Johnson’s absence may have been covered by FMLA, and McCreery never asked. When McCreery asked Streetman "if the infraction was clean, if there were any other circumstances to the infraction," Streetman answered "no."
Streetman terminated Johnson on Friday, February 22, 2007 for his absence the previous Saturday. Streetman told Johnson that the reason for his termination was his violation of Kmart’s absence control policy.
After being informed of the decision, Johnson asked whether she was doing so "even though it was because I had to rush my son to the hospital." Johnson also told Streetman that he had the paperwork from the hospital if she needed to see it, but Streetman told him that she did not need to see the paperwork and "it doesn’t matter, I don’t care."
Kmart’s decision not to settle the case makes no business sense
A smart company that was sued, especially given these facts, would have settled immediately.
First, this was a very sympathetic case.
Second, the decision to discharge shows Kmart to have badly bungled and not to have followed its own rules - meaning it was a sure loser.
Third, it seems obvious that Johnson had a pretty good FMLA claim, and Kmart had no good defense, meaning it would likely lose.
Fourth, lawsuits are expensive. This case was filed in 2007, two years ago. Two years of litigation and lawyers fees, two years of losing employee time to talk to lawyers and be deposed, to gather documents for discovery, etc etc etc.
Fifth, when Johnson sued under the Family and Medical Leave Act, Kmart’s response was to claim that the injury was not serious enough for Johnson to take Family and Medical Leave Act time. What parent hearing Kmart’s heratless defense would have anything but contempt for Kmart and sympathy for the family faced with making split second decisions with very little information. So what if the injury was not for three days or more. Thank God for that.
In other words, Kmart loses big in the PR department with this case.
What it should have done when it learned the facts of the case was settle and not drag this out.
And they wonder why American businesses are in trouble.
It’s not the unions, certainly something that is not a problem for Kmart, which has a long record of fiercely fighting off unions, and not the workers. It’s the people who are in the offices making the big decisions.
The way Kmart conducts its business is summed up by what Streetman told Johnson - she did not need to see the paperwork and "it doesn’t matter, I don’t care.