TOP TIP: Employers – Make Sure the Evidence Supports the Story


When taking disciplinary action against an employee, it is important for employers to ensure that the underlying evidence clearly supports the reason for such action. Sometimes, decisionmakers get caught up in the emotion of the moment and do not necessarily maintain objectivity, or they do not take the time to fully investigate and confirm the situation. This kind of tunnel vision can cause problems in defending such decisions, as the U.S. Court of Appeals for the Sixth Circuit recently found.

In Courtney v. Wright Medical Technology, an employee who had received generally good performance reviews was fired by his new supervisor, not for performance, but for “style, approach and behavior” issues for which he had not received progressive discipline. The company cited three specific incidents to justify the termination decision: an email exchange in which the employee failed to provide his supervisor with an adequate response as to why the warehouse sprinkler system was set up a particular way, the employee’s disparagement of the supervisor to a governmental agency, and an incident in which he threatened another employee. The company also asserted that there had been ongoing issues with leadership that predated the new supervisor. The employee was replaced by a younger individual, and he sued for age discrimination.

The Sixth Circuit found that the employer’s stated reasons for the termination were not factually supported. With regard to the email exchange, although the company characterized the employee’s communications as non-responsive, the Sixth Circuit found that a jury could determine that the employee had provided both an answer to the supervisor’s question as well as a narrative explanation (i.e. “The sprinklers are a code requirement and we cannot remove them,” along with the actual code provisions). The Sixth Circuit also rejected the company’s characterization of the employee’s responses as “evasive,” “coy,” and “short,” noting that the supervisor initiated the discussion with “stern and accusatory language” (i.e. “In 25 years, I have never seen this …. This is ridiculous and was a terrible waste of money.”).

As to the alleged disparagement, the agency had sent several letters to the company noting that several company representatives had recently reached out about the sprinkler system requirement because current (unspecified) management was “upset.” Although the supervisor believed the employee had inappropriately communicated the supervisor’s feelings about the sprinkler system to the agency, the employee denied doing so, asserting that he only stated that management wanted to know if they could change the system. The Sixth Circuit noted that the letters themselves did not support the company’s conclusions – the letters referenced inquiries from “various” company employees and did not clearly disparage the supervisor.

Next, although the company characterized the interaction between the employee and a co-worker as “workplace violence,” both of them disagreed with the company’s view of the event. Importantly, the alleged victim denied that the employee raised his voice or threatened him.

And finally, the Sixth Circuit noted that the company’s assertion that the employee had ongoing issues with leadership was not supported by any documentation – in fact, all of his reviews reflected that he exceeded expectations or was outstanding in his role.

What this case emphasizes is that employers must be thoughtful and objective in assessing the evidence that will support a disciplinary or other adverse employment action. It is important to step back and consider how a jury, judge or fair employment agency might view relevant documents, and to confirm that the testimony of witnesses will actually support the company’s position.