Heyl Royster


Heyl Royster


Missouri Federal Decision Shows the Importance of Following a Progressive Discipline Policy


By: Jim Nowogrocki

In Lindeman v. St. Luke’s Hospital of Kansas City, 899 F.3d 603 (8th Cir. 2018), a case arising under the Americans with Disabilities Act (ADA), the Eighth Circuit Court of Appeals recently held that a former employee failed to show the employer's reason for his termination was pretextual because he did not point to any evidence that two co-workers were also at the last stage of a progressive disciplinary policy, thereby warranting termination for his additional violation.

Thus, the federal court found that summary judgment was properly granted in favor of the employer in a case involving a violation of a hospital's patient confidentiality policy.

Employer Followed Its Progressive Discipline Policy

The employer, a hospital, had a progressive discipline system under which an employee receives a verbal warning for the first infraction, a written warning for a second infraction, a suspension or second written warning for a third infraction, and termination for any subsequent infraction. In addition, the hospital had clear rules prohibiting the dissemination of confidential patient information, including patient names.

The Eighth Circuit found evidence that the employee first received a verbal warning after failing to answer or return a supervisor's phone calls. Next, the employee received a written warning for failing to abide by the hospital's timecard and call-in procedures at least five times. The next month, the hospital suspended the employee for failing to call in prior to missing a scheduled shift. Finally, when the employee mentioned the name of a patient to a number of individuals inside and outside of the hospital, the fourth infraction qualified him for termination.

Failure to Establish an ADA Claim

Subsequently, the employee, who suffers from obsessive compulsive disorder, attention deficit disorder, bipolar disorder, and other physical limitations, sued his former employer pursuant to the ADA.  

Under federal law, once an employer articulates a legitimate non-discriminatory reason for a discharge, the burden shifts to the employee to present sufficient evidence that the employer's stated reason for the termination was "pretextual," meaning it was false and that discrimination was the real reason.

Pretext may be demonstrated by showing disparate punishment between similarly situated employees, but the former employee had to show that he and the alleged comparators "were similarly situated in all relevant respects."

Here, the plaintiff asserted that two other employees also revealed the name of the patient, but were not disciplined in any way. However, the Eighth Circuit said there was no evidence that that those two individuals were also at the last stage of the progressive disciplinary policy.

Moreover, the former employee conceded that he had, in fact, mentioned the patient's name after being expressly told that doing so was a violation of hospital policies. As such, the termination under the fourth step of the progressive discipline policy was not shown to be pretext for unlawful discrimination.

Summary of Decision

By following each step of its progressive disciplinary policy, the hospital was able to show as a matter of law, that its reason for the employee's termination—disclosure of confidential information in violation of policy as the fourth infraction—was a legitimate, nondiscriminatory reason for the adverse employment action.