Reprinted from the August 1, 2007 issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through true-to-life dialogue and fact-based examples. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Proper Termination Procedure Negates Retaliation Claim

You may be hesitant to fire an employee who has recently engaged in a protected activity, and with good reason. The timing of the termination could indicate retaliation. But if you've been properly handling the employee all along, that timing becomes a moot point.

Tim Dodson had already addressed with Kate Hoffa the need for her to show her supervisors more respect.

"You've been putting up unnecessary resistance when a supervisor asks you to do something. If you have any questions about the assignment or a conflict with another assignment, feel free to say something. But otherwise I need you to have a less combative attitude," Dodson had warned.

The next time he met with her about her attitude, Hoffa pointed fingers.

"I don't like the way Manny spoke to me," Hoffa grumbled. "He was so angry with me. He yelled at me and called me ‘stupid' and ‘lazy'…because I'm a woman."

"I don't know about that," Dodson said skeptically about her last point. "It seems that he was angry because when he asked you to research some information for him, you turned around and asked someone else to do it. But I'll look into your discrimination claim."

As the months went by, Dodson met with Hoffa numerous times.

"You have to be aware of how you come across. Seymour said you were rude to him."

"When Debbie explained the new reporting policy, you commented to everyone that it was ‘silly.' That's another example of your challenging authority and exhibiting a negative attitude."

"Our client at Acme said you kept him on hold for almost 30 minutes."

The list of complaints that Dodson heard from Hoffa's supervisors, peers, and customers grew and grew. The final straw occurred when Hoffa worked on a project using the wrong specs.

"It's not my fault someone mixed up the paperwork of two of our clients," Hoffa argued.

"You're right, the paperwork mix-up is not your fault. But you should have caught it, had you done a thorough reading of the entire file," said Dodson.

Dodson met with Hoffa's supervisors to discuss her performance. They all agreed that it would be best to let her go. It was only three months after her discrimination complaint, but her retaliation lawsuit was unsuccessful.

MLB SCORECARD

Dodson dodged a retaliation bullet due to the following factors.

1. Communication. Dodson talked to Hoffa about her issues in a timely manner, so she had the chance to change.

2. Evidence. To defend a performance-based termination, you need proof of poor performance. Dodson did.

3. Timing. That Dodson spoke to Hoffa about her performance issues before she filed her sex discrimination complaint put a big dent in her retaliation claim.

4. Collaboration. The employee argued that her supervisors collectively deciding to fire her suggested retaliation. The court held that "uniform agreement" strengthened the company's claim that her performance was the reason it fired her. Plus, "collective decision-making is less susceptible to influence by an individual with a retaliatory motive."

5. Time. Dodson didn't jump the gun by firing Hoffa after a couple minor incidents. The decision was based on a dozen incidents over five months.

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