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Jury Service Must Be ‘But For’ Cause of Employment Termination

By Michael K. Ott  7/16/2014
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The Jury System Improvement Act (JSIA) prohibits an employer from discharging an employee “by reason of” that employee’s jury service. According to the 5th U.S. Circuit Court of Appeals, the employee must show that the termination of employment would not have occurred “but for” that jury service.

Wanda Rogers was selected as an alternative grand juror beginning on Aug. 19, 2011. On Oct. 13, 2011, Rogers was selected to be an active member of the grand jury, which met on eight Fridays over a nine-month period. However, Rogers argued that despite only missing work on eight occasions, the effect of her jury service on her employment with Bromac Title Services LLC was much greater because she would not know she was needed until the Wednesday prior to the Friday in which she would be serving.

Prior to her termination of employment on April 20, 2012, Rogers gave a speech at an introductory sales meeting of new personnel where she made a joke about unprotected sex. After being counseled for inappropriate behavior, she later spoke at another sales meeting with potential clients where she stated she would always answer her phone on the weekends, unless she was drinking. Her employment was terminated for unprofessional behavior.

During the trial, Rogers argued that her supervisor had made comments that she should try to “get out of jury duty” and that her employer’s culture typically supported the type of comments for which her employment was being terminated.

The trial court reasoned that under the JSIA, Rogers must prove that her jury service was the “but for” cause of her employment termination. In applying “but for” causation, the trial court reasoned that Rogers must prove that the jury service was the reason for her termination, and not merely a motivating factor in it. Accordingly, the trial court found that the employer had provided undisputed evidence of a legitimate reason for the termination (inappropriate conduct), so Rogers’ jury service could not be the “but for” causation of her termination. The appeals court affirmed.

Rogers v. Bromac Title Servs. LLC, 5th Cir., No. 13-31097 (June 18, 2014).

Professional Pointer: In spite of the outcome of this case, it is not advisable to use jury service as a motivating factor for an employee’s termination.

Michael K. Ott is an attorney with Malone Thompson Summers and Ott, the Worklaw® Network member firm in Columbia, S.C., and Charlotte, N.C.

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