By: Claudia D. Orr
My dad used to joke that some people will tell you something 50 different ways before they would lie about it… Well, the truth caught up with one fibber and she reaped her just rewards, twice. Let’s see how justice prevailed in the January 26, 2017 opinion of the Michigan Court of Appeals in Davis v Ford Motor Company.
Nola Davis submitted an application for employment with Ford in February 2013. In it she claimed she had never been fired from a job or convicted of a crime. Davis was hired and, a few months later, she called the Ford hotline to complain of sexual harassment. Eventually she filed a lawsuit claiming sexual harassment.
During a deposition, Davis became flippant with defense counsel, refusing to say whether she had ever sued a prior employer, telling the attorney she could find it out for herself. Being a defense attorney, I understand how this was a little like waving a red flag in front of a bull. The attorney discovered that Davis had been fired by three prior employers and had a misdemeanor conviction in 2008. The information was turned over to Ford’s Office of General Counsel and, in turn, to Human Resources. By June 2014, Davis’ employment was terminated for providing false information in her employment application. Thereafter, Davis brought additional claims of intentional discrimination and retaliation, alleging she was fired for her prior complaint of sexual harassment.
Kevin Littlejohn, a former Human Resources Manager at Ford, testified that he had a general awareness of Davis’ call to the hotline, but he had no knowledge of the lawsuit that had followed. He further testified that he had received the information from the Office of General Counsel and had thereafter determined that Davis had provided false information on her employment application. As a result, Littlejohn made the decision to terminate Davis’ employment.
The employment application gave notice that any misrepresentation would be grounds for discharge. Littlejohn indicated in an affidavit that, in the past when he learned of false statements on the employment application, the employee was terminated or the job offer was withdrawn.
The trial court found that Davis had only showed that she was discharged after she had brought her sexual harassment claim, not because of it and dismissed her case. The appellate court affirmed. While Davis attempted to explain away her misrepresentations, neither court bought her flimsy excuses. Davis was dismissed from her employment and her lawsuit was dismissed as well.
This case shows the value of a good employment application. I always tell new clients that the acknowledgment on the last page is the first line of defense for employers and must be properly prepared. At a minimum, it needs to include a 180-day limitations period, the requisite notice of the need to request an accommodation in writing under Michigan’s Persons with Disabilities Civil Rights Act, the warning about misrepresentations, a release for giving and obtaining information to validate information provided by the applicant and, of course, notice of the at-will nature of employment. To ensure the acknowledgment is properly written, always consult with an experienced employment attorney, such as the author.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. February 2017.