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To Justify Firing African Employees, This Bad Boss Made Them Take a Biased Test

Not long after she became administrator of the New Mercer Commons assisted living facility in Fort Collins, Colo., Pamela Lewis began pushing for change.

In particular, according to court filings, she aimed to get rid of several African patient care providers (PCPs). “They just can’t speak English,” she complained to Marlene Hoem, her staff development coordinator, Ms. Hoem said in testimony.

Ms. Hoem, who had worked at New Mercer Commons for more than 14 years and knew the staffers well, disagreed with her new boss: She replied that the PCPs in question were well-liked and well-understood by patients, according to a complaint filed by the U.S. Equal Employment Opportunity Commission (EEOC).

Nonetheless, Ms. Lewis soon asked Ms. Hoem about shifting one of the PCPs she had criticized — Sawson Ibrahim, an immigrant from Sudan — to the facility’s housekeeping crew. When Ms. Ibrahim began crying and begged to continue helping patients, Ms. Hoem backed off and informed Ms. Lewis.

About a week later, Ms. Lewis summarily fired Ms. Hoem — and then launched new policies that would result in the dismissal of four African caregivers, including Ms. Ibrahim and her husband, purportedly for failing a written test that the EEOC said was biased against them.

Pamela Lewis is our new Bad Boss of the Month.

After investigating the situation at New Mercer Commons and failing to reach an agreement with its operator, Columbine Management Services, Inc., the EEOC filed a complaint in federal court alleging discrimination against the four African PCPs — and illegal retaliation against Ms. Hoem for refusing to go along. Under a consent decree entered in July 2018, Columbine agreed to settle the case by paying $335,000 to be divided among the five victims, and by submitting to continuing oversight from the EEOC.

Ms. Hoem had gotten her start at New Mercer as a caregiver herself, but quickly was promoted to staff development coordinator. For more than a decade she hired, evaluated, and scheduled the facility’s employees, often volunteering for holiday shifts herself so that staffers could be with their families.

With a caregiving staff that had always included PCPs from many countries — from Spain to Iraq to Nepal to the Philippines — Ms. Hoem testified that she was puzzled by Ms. Lewis’ particular focus on Africans. The new boss “said ‘they’ a lot,” Ms. Hoem recalled in a deposition. “I told her that [the African PCPs] were good employees, they were dependable, reliable, respectful to their coworkers and supervisors, kind to the residents.”

In her deposition, Ms. Hoem said she urged Ms. Lewis to get to know all of the caregivers, to no avail. Instead, Ms. Lewis jumped on Ms. Hoem’s failure to transfer Ms. Ibrahim to the laundry room as a reason for firing her.

In a memo written at the time and filed in connection with the EEOC lawsuit, Ms. Lewis justified the termination, in part, by saying she had received “numerous family complaints about [Ms. Ibrahim’s] ability to care for their loved ones due to her language barrier.” In testimony, Ms. Hoem said she never heard such complaints; Columbine Management offered no further documentation.

In a court filing, meanwhile, the EEOC portrayed Ms. Hoem’s firing not just as retaliatory but also as a possible preemptive strike because Columbine “anticipated she would oppose” a broader plan, fueled by Ms. Lewis’ anti-African views, “to be rid of the African employees.”

In the event, Ms. Lewis soon had five of her facility’s six African caregivers on performance improvement plans (PIPs) — a disciplinary step that’s often a prelude to firing. According to a brief by the EEOC, only one other employee was ever put on a PIP during Ms. Lewis’ tenure, even though many caregivers had comparable English proficiency.

Among the PCPs targeted for “improvement” was Kiros Aregahgn, an Ethiopian immigrant who at the time had worked at New Mercer for eight years, consistently receiving above-average assessments. Under her PIP, Ms. Aregahgn was instructed to speak English at all times and to upgrade her patient paperwork within three weeks — although no specific deficiencies in her documents were noted, according to the EEOC’s filing.

Ms. Aregahgn also was instructed to take a new “PCP Training Course,” which consisted of three days of instruction with a written test covering each day’s content. The tests were created by Penny Rubala, a director of clinical education for Columbine, and featured “linguistic and structural characteristics known to confuse” non-native English speakers, as well as “extraneous variables unrelated to the skills the exam was intended to measure,” according to the EEOC’s complaint. The course would later be rolled out for all PCPs — although not as a hiring criterion.

Ms. Ibrahim and her husband also were put on PIPs and sent to take the first-ever session of the new course along with fellow Sudanese immigrant Hanaa Gual, also on a PIP; two more African PCPs; and nine other caregivers. An e-mail from Ms. Rubala, who administered the course, incorrectly identified all six African employees as being “from Ethiopia” and mentioned “very strong body odor.”

“I don’t envy Pam [Lewis] with her PIPs,” Ms. Rubala wrote in the document, later filed in court.

Ms. Rubala gave the session’s only failing grades to Ms. Aregahgn, Ms. Ibrahim and her husband — both of whom she accused of cheating — and Ms. Gual. According to the EEOC’s complaint, the African PCPs weren’t given the same partial credit that their non-African peers received for partially correct answers. Based on information supplied by Columbine for the lawsuit, only two out of almost 170 PCPs failed the course in the six years that followed its initial administration. An expert witness for the EEOC said the aggregated results showed an adverse impact on African employees — and that, independent of this impact, the test was an invalid tool anyhow and “should not have been used for employment decisions.”

After seeing the results of the initial session, however, Ms. Lewis and her team decided that failure should result in dismissal, according to EEOC filings. On a single day, Ms. Lewis terminated Ms. Ibrahim and her husband, Ms. Aregahgn, and Ms. Gual.

In a deposition, the director of the EEOC’s Denver field office equivocated about whether Ms. Lewis had an “evil intent” from the get-go to use test results in “a plot … to potentially run these individuals out,” something Ms. Lewis had denied in testimony.

“[I]t could be that … as time progressed … [the tests] became a vehicle,” the EEOC’s John Lowrie testified. In the end, however, Mr. Lowrie said the agency concluded that Ms. Lewis had requested the testing specifically to push out African PCPs.

Of the two people who failed the course in subsequent sessions, only one was fired as a PCP — and he, a white man, was given a housekeeping position at equivalent pay, according to court documents. An official at Columbine even discussed allowing the man to retake the test, despite his flubbing “basic questions such as infection control,” but rejected the idea because it might look bad: “We are concerned … it would place the program in jeopardy based on previous terminations,” the official wrote in an e-mail that was later filed in court. “I don’t want to have this issue to backfire and cause additional EEOC charges.”

By this time, Ms. Lewis had moved on: She left New Mercer for health reasons a few months after firing Ms. Ibrahim and the other African PCPs. Saying she no longer wanted to work as an administrator, she took a job as a care provider and later started studying for a Ph.D. in clinical psychology that covered, in part, “the importance of understanding different cultures,” she said in a deposition.

She didn’t complete the work, she testified.

» Read the EEOC’s amended complaint

The Employment Law Group® law firm was not involved in EEOC v. Columbine Management Services, Inc. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

This case was filed on behalf of the fired New Mercer employees by the EEOC’s Denver field office.

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