A white nurse failed to establish that her termination for circulating an e-mail critical of President Obama occurred because of her race, a federal appeals court has found, affirming summary judgment for the employer.  DeCarolis v. Presbyterian Medical Center of the Univ. of Pennsylvania Health System, d/b/a Penn Presbyterian Med. Ctr., No. 12-3647 (3d Cir. Jan. 27, 2014). 

Amy DeCarolis worked as a nurse at Presbyterian Medical Center.  While at work, she opened an e-mail from her father containing statements critical of President Obama.  The e-mail included a letter from a CFO of an unrelated entity who said he needed to lay off employees because “our taxes and government fees will increase [i]n a BIG way.”  The CFO’s letter continued:

So, this is what I did. I strolled thru [sic] our parking lot and found 8 Obama bumper stickers on our employees’ cars and have decided that these Folks will be the first to be laid off.  I can’t think of a more fair way to approach this problem.  These folks wanted change; I gave it to them.

Several of the plaintiff’s coworkers saw this e-mail, and one reported to the plaintiff’s supervisor that she had circulated a racially offensive e-mail.

Following an investigation, the employer terminated the plaintiff’s employment because her circulation of the e-mail was “inappropriate and unprofessional.” 

DeCarolis sued the employer, alleging she was terminated because of her race in violation of Title VII of the Civil Rights Act of 1964 and Pennsylvania law.  The District Court granted the medical center summary judgment on all claims and the U.S. Court of Appeals for the Third Circuit affirmed. 

The appeals court found that the plaintiff’s coworkers and the people responsible for the decision to terminate her employment were upset by the content of the e-mail she circulated and that this and the discord which ensued led to her termination.  However, the Court found no direct evidence to suggest the focus of their actions or comments were related to the plaintiff’s race as opposed to her conduct.  Similarly, the Court found the plaintiff failed to demonstrate the medical center’s legitimate nondiscriminatory reason for terminating her employment was a pretext for race discrimination.  Accordingly, the Court affirmed the judgment of the District Court dismissing the plaintiff’s claims.

While the employer prevailed in this case, the underlying situation demonstrates the importance of communicating to employees through policies and training about the appropriate use of e-mail.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.