Court Upholds Termination of Medic Fired For Lying on Application

A decision to terminate a Georgia paramedic who sought a religious accommodation for facial hair, has been upheld by the 11th Circuit Court of Appeals because he falsified his employment application.

The case was brought by Bataski Bailey, who was hired and fired by Metro Ambulance Services dba American Medical Response in 2015. AMR provides ALS transport under contract for DeKalb County, and as such its personnel are required to comply with DeKalb County’s grooming policy.

The fact pattern is rather complicated but quite interesting. As explained in the ruling:

  • When he arrived [on his first day], Bailey, a practicing Rastafarian, had a goatee as part of his religious practices.
  • Bailey explained that growing facial hair is “seen as sacred and imbuing power to the believer” in Rastafarianism.
  • At the end of his orientation day, Bailey’s training officer, Ellette Jackson, advised him of DeKalb County’s grooming policy for emergency transports, with which AMR required compliance for employees conducting such transports.
  • That policy was the DeKalb County Fire Rescue Grooming Policy, and in relevant part, it prohibited “beards, chin whiskers, [and] goatees.”
  • Jackson explained that Bailey’s goatee violated the policy. Bailey responded that he was Rastafarian and had an issue with the policy.
  • Jackson replied that there was nothing he could do about the policy, so they needed to speak with the captain.
  • When they arrived at the office, the captain was not there, so they spoke with Ric Lavallee, the lieutenant.
  • Lavallee told Bailey he would have to shave his goatee. Lavallee suggested that if Bailey declined to shave, he could still work non-emergency transports for AMR.
  • Bailey objected. He said, “You are holding me back,” “You are singling me out,” and “You are discriminating against me.” And he insisted that he was going to work only emergency-transport shifts.
  • Still later that day, Bailey emailed [HR Manager Nykia] Moore about the grooming policy. He noted that he had learned his goatee was “not approved by AMR.”
  • Then he stated that he was a practicing Rastafarian, and Rastafarianism’s traditional requirements demanded he maintain his facial hair.
  • Bailey further explained that he had previously consulted his spiritual leader about how to avoid safety problems while still complying with his religious requirements, and his religious advisor instructed him to “shave what is acceptable to safely function as a paramedic without completely shaving [his] face.”
  • Thus, Bailey continued, he had done so by shaving in a way that allowed him to use an N-95 mask and any other respirator-type device without complications.
  • Finally, Bailey opined that AMR’s refusal to allow him to work emergency transports with his goatee was “clearly in violation of the [Equal Employment Opportunity Commission’s (“EEOC”)] guidelines on religious discrimination” and said he hoped to resolve the matter “with no further action.”
  • The next morning, Moore emailed Bailey to ask whether Bailey wanted his email from the night before to serve as his grievance request. Bailey said he did.
  • Moore forwarded Bailey’s email to AMR’s in-house Senior Labor and Employment Counsel, Scott Rowekamp.
  • Rowekamp, who attested that he has a routine practice of “perform[ing] due diligence and fact-gathering” when he becomes aware of potential litigation, searched Bailey’s name on Google “as part of [his] standard due diligence efforts.”
  • The first result Rowekamp found linked to a wrongful-termination lawsuit Bailey had filed against one of his previous employers, Rural Metro.
  • After following that link, Rowekamp logged on to PACER to obtain more information about the suit.
  • There, he found a declaration that Bailey had filed in that case. In that declaration, Bailey attested that, “On April 10, 2008, … Ms. Riner terminated my employment with Rural Metro.”
  • Concluding that Rural Metro had fired Bailey, Rowekamp determined that Bailey had given a false response on his employment application with AMR.
  • As we have noted, that question asked whether Bailey had ever been fired or asked to resign from any job. And Bailey’s AMR application reflected the answer “no.”
  • In addition, the application indicated that Bailey had agreed to a certification of his application in which he said he understood that “any false information or omission [in his application]… may result in [his] immediate dismissal if discovered at a later date.”
  • Before Rowekamp became involved, nothing in Bailey’s application had raised any red flags warranting an investigation into falsification.
  • In the meantime, Moore had continued to offer Bailey, as an accommodation of his religious beliefs concerning grooming, the opportunity to work as a non-emergency paramedic, which would not require him to change his facial hair.
  • Moore had obtained approval for the accommodation from AMR’s Human Resources Director, Kate Demitrus, and Rowekamp.
  • Moore also checked with AMR’s operations manager about possibly accommodating Bailey’s goatee for emergency work, but “he was adamant about the fact that [AMR] adhere[d] to the DeKalb County grooming guidelines, no exceptions.”
  • Bailey refused the accommodation. He explained that he “d[id]n’t feel like [he] should have to settle for th[e non-emergency] position.”
  • On January 21, 2015, he sent an email to AMR and advised that he had filed a complaint with the EEOC.
  • On January 30, 2015, Moore met with Bailey. She noted that Bailey’s AMR application indicated that he had not previously been fired or asked to resign from any job, but that AMR had discovered a declaration from one of Bailey’s prior lawsuits in which Bailey admitted that one of his previous employers, Rural Metro, had fired him.
  • Moore asked Bailey if he had any explanation for the discrepancy.
  • Bailey responded that he had sued another prior employer, Care EMS, for discrimination after they fired him. Since that time, Bailey stated further, they “removed the termination” “due to wrongful termination.”
  • As to his termination from Rural Metro-the former employer Moore had asked about-Bailey directed Moore to his attorney in his lawsuit against that company and stated that his attorney advised him that “this termination d[id] not count as a termination due to it being wrongful.” Bailey provided a written statement to this effect, and he signed it.
  • Moore informed Bailey that he was being placed on unpaid administrative leave. Demitrus had decided to place Bailey on unpaid leave because he refused to do non-emergency transport work, and his facial hair continued to violate the DeKalb grooming policy for emergency work, so “essentially there was nowhere for him to go.”
  • Later in the day on January 30, Bailey emailed Moore and said that he viewed his “unpaid suspension pending review” as “a thinly veiled attempt to terminate [his] employment” in retaliation for his filing of an EEOC complaint alleging religious discrimination.
  • He further advised AMR that he would be amending his EEOC complaint to add a retaliation claim.
  • Bailey was officially fired on February 4, 2015, for falsifying his termination status with his previous employer.
  • AMR explained that it took falsification very seriously because honest and accurate documentation is critical for billing government health-coverage programs like Medicare and Medicaid.
  • AMR has also fired others for lying on their employment applications. Indeed, Moore testified that she was not aware of any case where AMR had discovered that a person had not been truthful on his or her employment application and was not thereafter fired.

Bailey filed suit alleging religious discrimination and retaliation. The suit raised a number of troubling issues for both the trial court and the court of appeals, including whether AMR had an obligation to accommodate Baily’s facial hair; whether the falsification of the employment application was a pretext for illegal discrimination, or whether it was in fact adequate justification; and whether AMR’s knowledge of Bailey’s earlier Title VII discrimination suits was the reason for its decision to terminate.

As explained by the 11th Circuit:

  • AMR offered Bailey a reasonable accommodation.
  • It provided Bailey with the opportunity to maintain his beard and to work on the non-emergency-transport side of its operations, for which DeKalb County’s facial-hair policy did not apply.
  • Had Bailey accepted the offer, his salary, hours, and job description would have remained the same as if he had worked either exclusively on the emergency side or on both the emergency and non-emergency sides of AMR’s operations.
  • As a result, his terms and conditions of employment would not have been affected by the accommodation AMR offered.
  • We are not persuaded by Bailey’s arguments to the contrary.
  • Bailey alleges he was fired for participating in protected activity in the form of his prior lawsuit against his previous employer, Rural Metro.
  • Certainly, if AMR terminated Bailey’s employment because it learned he had engaged in protected activity in a prior job, that would constitute retaliation under Title VII.
  • After all, Title VII prohibits an employer from discriminating against an employee or applicant because he “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII.
  • By its plain language, Title VII does not require retaliation to be based on protected activity engaged in against the defendant employer.
  • But here, Bailey has not demonstrated that his participation in Title VII-protected activity was the but-for cause for AMR’s termination of him.
  • Our review of the record yields no evidence that AMR fired Bailey because Bailey sued Rural Metro for alleged discrimination.
  • Rather, the evidence supports AMR’s assertion that it ended Bailey’s employment because it thought Bailey had lied on his application, since his sworn declaration in the Rural Metro case stated that Rural Metro had fired him, yet Bailey’s AMR application indicated that he had never been fired. Indeed, all evidence shows that AMR had a policy of firing employees it discovered had been untruthful on their applications.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
x

Check Also

Chicago OIG Releases Report on Fire Department Discrimination

The Inspector General for the City of Chicago released a long-awaited report into race discrimination and sexual harassment in the Chicago Fire Department. The 51-page report titled an “Audit of Policies and Practices Related to Discrimination and Sexual Harassment Within the Chicago Fire Department,” outlines the reasons for the investigation and the OIG’s findings.

Suit Alleges Long Island Fire Department Engaged in Disability Discrimination

A “Fire House Attendant” with the Setauket Fire Department on Long Island, New York, has filed suit alleging he was terminated in violation of state and federal disability laws. Ryan Kilmar filed suit today in US District Court for the Eastern District of New York naming the fire company, District Manager David Sterne and Dispatch Supervisor Janine Leute as defendants.