Legal

Video Killed the Lawsuit Star

By Jon Hyman

Mar. 14, 2016

If a picture tells a thousand words, then how many does a video tell?

Last week, the 6th Circuit affirmed the dismissal of a retaliation claim based on a video of an altercation that the plaintiff claimed she had not started.

The plaintiff in Witham v. Intown Suites Louisville Northeast LLC [pdf] was a hotel general manager who claimed that her former employer fired her after she sought workers’ comp benefits for an alleged on-the-job injury. Her employer, on the other hand, claimed that it fired her after she engaged in a heated verbal exchange, followed by a physical confrontation, with a customer. Thankfully, the court did not have to engage in a he-said/she-said analysis, because the employer had the entire incident on video.

Witham’s retaliation claim fails. Even if she could establish the first requirements of a claim, she cannot show that Intown’s explanations for discharging her—supported by the video—amounted to pretext. Intown’s general counsel stated that the company fired Witham because her behavior in the video was neither “professional [n]or necessary under the circumstances.” By encouraging the man to jump onto her desk and by preventing him from leaving, Witham transformed a minor incident over a wrongly dispensed water bottle into a tense conversation and eventually into a physical confrontation, violating a number of company policies along the way. And she did all of this in front of another employee whom she was supposed to be training. The security footage bears out the hotel’s version of events, confirming Witham’s belligerent and unsafe conduct. Intown’s general counsel stated that this conduct was the only factor that went into the decision to fire Witham, noting that the executives never so much as mentioned her workers’ compensation claim.

We live in a connected world. There are security cameras everywhere. I was in Disney World last week speaking at a conference, and could not walk an inch outside my room without being recorded and surveilled. And, if it’s not an official municipal or corporate camera making the recording, it will be someone with a cell phone. Nowadays, I am much more surprised when video does not exist than when it does. As a result, more and more often, video will help decide lawsuits. The truth is out there, and increasingly video will help us locate it.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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