Be Consistent and Thorough with Termination Reasons!

The failure to do so can result in liability – or at least the costs and aggravation of extended litigation – under anti-discrimination statutes, as an employer recently found to its great dismay.

In Watkins v. Tregre, a Black employee in a local Sheriff’s Office was terminated shortly after she requested leave that was covered under the Family and Medical Act. The employee had been verbally counseled for poor performance prior to her request, and two days after her request, her supervisor requested a disciplinary review board hearing for five infractions. The board, however, only reviewed one infraction – sleeping on the job – and recommended her termination. The employee sued, alleging violations of Title VII and the FMLA. In support of her claims, she noted that a White employee holding the same position had been counseled but not fired for sleeping on the job. The trial court dismissed her claims, finding that the Sheriff’s Office had offered legitimate reasons for her termination – a variety of performance issues.

The U.S. Court of Appeals for the Sixth Circuit reversed the trial court’s ruling, finding that there was evidence of pretext for discrimination. More specifically, the employee was fired for sleeping on the job while a White colleague was only counseled. Although the Sheriff pointed to performance issues beyond the sleeping, which likely would have been a sufficient basis for the disparate treatment, the problem was that there was evidence that the board considered only the sleeping – and not the other infractions – in deciding to terminate her.

The case demonstrates the need for employers to ensure that, if there are multiple reasons for termination, the record needs to reflect all – not just some – of the reasons. And it is critical to review how other employees engaging in similar behavior have been treated and ensure consistency of treatment for the misconduct on record.