An Independent Review Can Help Insulate Termination Decisions

This is particularly true when an employee has engaged in some form of protected conduct – such as taking leave under the Family and Medical Leave Act, as shown in a recent case from the U.S. Court of Appeals for the Tenth Circuit.

In Parker v. United Airlines, Inc., the employee fielded customer calls to book flight reservations. A number of months after she took FMLA leave, her supervisor claimed that she was avoiding customer calls by placing them on hold while chatting with co-workers. Following an investigation, including a meeting with the employee and her union representative, the supervisor recommended termination. Under the employer’s standard termination process, before termination could occur, a manager was selected to hold a meeting in which the supervisor, employee and the union representative could present arguments and evidence. The manager would then make a decision about termination. A terminated employee could then file a grievance to appeal the termination, and another manager would conduct a conference call in which the employee and union representative could present further arguments and evidence. The second manager would then decide whether to uphold or overturn the termination decision. Following this process, the first manager decided to terminate the employee, and her termination was upheld by the second manager. She then sued, alleging that she was actually terminated in retaliation for her use of FMLA leave, and that the manager(s) acted as the supervisor’s “cat’s paw” – i.e. that the supervisor’s illegal motive improperly influenced the decisionmaker(s).

The Tenth Circuit, however, rejected her claim, stating that “Retaliation entails a causal link between an employee’s use of FMLA leave and the firing. That causal link is broken when an independent decisionmaker conducts her own investigation and decides to fire the employee.” Thus, by having a higher-level manager independently investigate the grounds for dismissal, the employer prevented the supervisor’s alleged bias from being connected to the termination decision.

Thus, for employers who are considering termination of an employee who has engaged in some form of protected activity – whether taking protected leave or perhaps complaining of discrimination or harassment – this case provides the useful suggestion that a full and independent review of the grounds for termination by a higher-level manager can provide a strong defense against a retaliation claim.