Extraordinary Workplace Misconduct: With this drill, I thee wed…?

By Fiona Ong - Shawe Rosenthal LLP

August 5, 2024

As the federal court said, “This is a case about a dental appointment in Qatar, an international romance, national security, and a once-in-a-lifetime pandemic. It is also a case about Title VII.” (Really, I could not come up with a better lede myself). And so begins the latest entry in our sporadic series of extreme cases of bad workplace judgment.

In Waan v. FGS, LLC, the employee was hired by a government contractor that provides intelligence analysts to governments to combat terrorism and the proliferation of weapons of mass destruction, among other national security threats. (Oooooh, very James Bond!!) He was assigned to work at a military base in Qatar, with top secret clearance.

And then came COVID. Now we’re generally pretty blasé about it, but try to remember those first, early, terrifying days, when we didn’t know much about it other than people were dying in mass numbers and hospitals were overwhelmed. There were not enough masks to go around, we were supposed to stay at least 6 feet from one another, and avoid any unnecessary trips or errands. We didn’t see friends or family for many months. The world came to a shuddering halt.

During this time, FGS employees were required to live on base and could only leave for specific critical reasons with supervisory approval. For example, employees were approved to leave for necessary medical treatment, but not routine medical appointments. And masks and social distancing were still required during off-base travel.

The analyst here, along with a co-worker, requested and received approval to go to the dentist. Our romantic analyst then arranged for his girlfriend and his co-worker’s girlfriend (without his co-worker’s knowledge) to meet them at the dentist. And there, he dropped to one knee and proposed. Pictures were taken – of the proposal (appropriately masked), and the celebration (masks off!), including hugs by all and a kiss for our newly affianced couple (definitely no masks!) – and then posted to Facebook. (Seriously, folks. Do NOT memorialize your rule-breaking on social media).

As you might expect, the analyst’s superiors learned of his romantic escapade at the dentist’s office. And they were not pleased, to say the least. They interviewed our dental Romeo, who admitted to orchestrating the proposal (at the least romantic site possible), as well as the co-worker, who denied that the other woman was his girlfriend, that he had removed his mask, or that he had kissed anyone (there was only photographic proof of them hugging).

The analyst’s superiors decided to fire the analyst, because he had deliberately used the dental event as a pretext for his proposal, violated mandatory COVID protocols, and placed the entire team at risk of infection of a deadly, incredibly infectious disease following a 7-week period of reduced staffing on a military project that involved national security. This was on top of a “pattern” of other recent disciplinary incidents, including an attempt to fraudulently use his clothing allowance to purchase clothing for someone else (he submitted for reimbursement for XXL clothing, but he’s a medium), his continued contact with a woman who had accused him of sexual harassment despite clear instructions to stay away from her, and his failure to report his foreign national girlfriend as required by his top-secret clearance.

So the analyst sued for race (Asian) and national origin (Cambodia) discrimination under Title VII. But the Maryland federal court rejected his claims, finding that the analyst did not establish the required elements for a claim of disparate treatment based on race or national origin: (1) membership in a protected class; (2) satisfactory work performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class. Although he could show the first and third elements, the court found that he could not show the other two.

Although the analyst pointed out that his White co-worker hadn’t been fired despite lying about keeping his mask on (as those darned pictures showed), the court found that the co-worker wasn’t a proper comparator – he had not deliberately planned to circumvent COVID protocols, he did not know his girlfriend would be at the dentist’s office, and this was his first disciplinary offense, among other things.

So the good news for employers is that legitimate differences in circumstances can justify differences in treatment of employees. You can take into account things like the intent of the employee in breaking the rules, as well as the potential harm they could cause, as well as their disciplinary history (and other things, like whether they are performing the same jobs or reporting to the same managers).

But the real lesson here – if you’re going to propose, put some romance into it, for goodness’ sake!! Frankly, I’m more offended by his poor romantic judgment than his workplace misconduct!!

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