No matter how strong the justification might be for an employee’s termination, there is still the possibility that the fired worker might bring a claim involving an alleged statutory violation or dismissal that is contrary to substantial public policy under the Harless standard. Cases where a claimant’s discharge occurs around the same time as a discrimination complaint or a request for absence under the Family and Medical Leave Act (FMLA) can be particularly tricky. 

West Virginia’s Supreme Court of Appeals reviewed the dismissal of a wrongful termination complaint in Linger-Long v. Grant Memorial Hospital Trust Foundation. The petitioner in that case was an enrollment specialist/financial counselor at the hospital who alleged violations under the FMLA and West Virginia Human Rights Act (WVHRA). After her mother suffered a stroke, Linger-Long requested the paperwork necessary for an FMLA absence. 

Approximately 10 days later, hospital administration received reports that Linger-Long was informing clients about ways to avoid financial responsibility for hospital services. Specifically, she advised patients not to sign the Medicare/Medicaid Advance Beneficiary Notice (ABN)—a form that, if unsigned, prevents the hospital from billing patients for non-covered services. A few days later, the hospital terminated her employment.

Despite the fact the she never actually turned in the necessary documentation requesting FMLA leave, Linger-Long alleged that her firing constituted unlawful retaliation. She also accused the hospital of age and gender bias under the WVHRA.

The court affirmed the trial court’s dismissal, holding that the hospital articulated a legitimate, non-discriminatory reason for the termination—advising patients not to sign ABNs, a serious policy violation with direct financial consequences to hospital. According to the decision, Linger-Long did not present sufficient evidence to demonstrate that the stated reason for the termination was pretextual. This might have been done by showing evidence of discriminatory remarks or more lenient treatment for other workers who engaged in the same sort of misconduct. Temporal proximity alone was insufficient to overcome the employer’s documented reason.

While close timing can raise suspicion of employment law violations, well-supported, policy-based decisions typically withstand scrutiny in cases such as this. Employers should not be intimidated by the prospect of allegations of discrimination or retaliation if they have strong defense counsel and are confident that they acted within the bounds of the law. 

Pullin, Fowler, Flanagan, Brown & Poe defends hospitals and other clients in employment law matters across West Virginia, Kentucky and Ohio. Please call 304-344-0100 or contact us online for a consultation regarding potential methods of countering claims made by a current or former employee.