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After reviewing CEO’s bad behavior, Fifth Circuit Court affirms judgement against EmCare for Title VII retaliation violations

June 1st, 2017 by David Minces

BVCHD-EmCareEmCare, which claims to be “the nation’s largest medical staffing network and healthcare management company,” might need to call in for a sick day.  The company will be forced to pay nearly half a million dollars to three employees for unlawful termination.  A Texas federal jury found that the employees had been fired because they had complained to their human resources office about sexual harassment in the workplace in a case settled in late 2014.  The jury awarded $167,000 in back pay to Plaintiff Luke Trahan and $82,000 in back pay for Plaintiff Yvonne Shaw.  The jury also awarded $250,000 in punitive damages for Plaintiff Gloria Stokes. EmCare filed an appeal that was decided by the Fifth Circuit Court of Appeals last week which affirmed those judgments.

CEO troubles

CEO Jim McKinney was the source of EmCare’s problems. In addition to compiling a list of female employees that he called “hotties”, he made numerous inappropriate comments and advances towards subordinates. Trahan, Shaw, and Stokes drew the attention of Mr. McKinney after repeatedly complaining about the CEO’s behavior to the company’s human resources department and how it constituted sexual harassment.  Trahan testified that often times after complaining about McKinney, he would tell Trahan that he “needed to shape up and do things better” but was not able to tell Trahan what specifically he needed to improve.  During the trial, numerous witnesses confirmed that the CEO often made inappropriate comments about female employees and the wives of employees.  They testified that, during work, he asked women to lower their blouses, hike up their skirts, show more cleavage, or turn around for him.  He also sought intimate hugs and more.  For Plaintiff Yvonne Shaw, the final straw came during Bring Your Child To Work Day, when Shaw introduced her teenage daughter to Jim McKinney, who told them, “[T]here is no way she is 15 with breasts like that.”  That day, Trahan submitted a formal complaint on the CEO about the incident.  Stokes also made complaints about similar incidents.  Soon afterwards, Shaw, Stokes, and Trahan were dismissed from their jobs.

Plaintiffs’ employment background

Luke Trahan testified that he was a stellar employee for EmCare’s AnesthesiaCare division.  Trahan was the head of the credentials and billing enrollment teams.  After a 90-day performance review, the CEO and COO of the AnasthesiaCare division both told Trahan to “keep doing what he was doing” as recently as two weeks before he was fired.  Trahan testified that the limited feedback he received about his work was positive.  Yvonne Shaw was a senior credentialing coordinator, who also claimed that the feedback she received regarding her work was far from negative. Plaintiff Gloria Stokes, McKinney’s executive assistant, also exhibited an unblemished record. This left EmCare without a valid explanation for the termination of Trahan, Shaw, and Stokes. While an employer in the state of Texas may terminate an employee for a multitude of reasons, or for no reason at all, when employees engage in protected conduct, such as complaining about sexual harassment, having a legitimate reason for terminating them is important in proving that the protected conduct was not the reason for their termination.

Reason for dismissal

EmCare claimed that Luke Trahan, Yvonne Shaw, and Gloria Stokes were dismissed for not meeting employment expectations.  The fact that the three were fired together was simply a coincidence.  Furthermore, they alleged that the terminations could not have been considered retaliation to the harassment complaints because the COO was not in contact with the HR department, and therefore he did not know about them.

However, Trahan claims he had only one concrete performance issue during the nine months he worked at EmCare.  Shortly after he began working for EmCare, a computer glitch caused the company’s contracts in El Paso to have a multitude of errors.  Trahan says that he fixed this error promptly, and EmCare conceded that this error did not result in any lost clients.  Furthermore, an audit conducted right before Trahan’s termination reported positive performance for Trahan, particularly compared to another recruiter who was not fired.  Ms. Shaw and Ms. Stokes’ strong performance histories were not questioned.

The law as it relates to this decision

Title VII rights protect employees from discrimination based upon sex, race, religion, national origin, and more. Retaliation for complaints about sex based harassment, such as in this case, is also protected by Title VII. The sexual harassment experienced by the women working for EmCare constituted discrimination based upon sex.  By reporting harassment to their human resources department, the plaintiffs in this case engaged in protected activity. The jury found that the dismissals of Trahan, Shaw, and Stokes were caused by their protected activity.  They reasoned that, since the CEO was able to find out about the complaints made against him, the COO would have known as well, invalidating EmCare’s case. Since there was only an unlawful explanation for the termination of these employees, after years of deliberations, the two parties made a settlement of nearly half a million dollars. The Fifth Circuit affirmed the settlement, finding that this was clearly a case of retaliation against the employees for engaging in protected activity under Title VII of the Civil Rights Act of 1964.

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