Employer Does Not Forfeit Right to Terminate for Previously Unaddressed Performance Issues


Although the employee had not been previously disciplined for various performance issues, the U.S. Court of Appeals for the Seventh Circuit found the employer did not forfeit its right to hold the employee accountable for the same type of conduct.

In Graham v. Arctic Zone Iceplex, LLC, following a release to work on a different shift after a work-related injury, the employee drove a Zamboni into the ice-rink wall, causing damage to the wall. He was terminated for his poor attitude about the change in shift, customer complaints, inability to perform tasks in a timely manner, insubordination, and failure to drive the Zamboni properly resulting in damage. He sued, claiming his termination violated the Americans with Disabilities Act. In support of his claim, he argued that he had not previously been disciplined for behavioral issues.

The Seventh Circuit, however, found that the employer had an honest belief in the reasons that it offered for his termination. As it stated, the employer’s “decision to let something slide without a formal response does not mean that it went unnoticed or untallied. And even minor grievances can accumulate into a record that justifies termination.”

While this case provides some comfort to employers that letting past transgressions slide does not necessarily insulate employees from negative consequences for similar conduct in the future, we emphasize that the case would have been much stronger for the employer had it been able to demonstrate a record of prior discipline. With such documentation, the employer might have been able to avoid litigation and its significant financial and other costs.