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Before disciplining employees, ask yourself a few questions and avoid a lawsuit

October 10th, 2013  |  Lorene Park

By Lorene D. Park, J.D.

What is the cost of disciplining an employee without following your standard procedure or policy? How about disciplining one more harshly than another for doing the same thing? It could be extended litigation if a court finds those circumstances cast suspicion on your reason for the discipline. For example, in Terpo v RBC Bank (USA), a bank employee who brought her child to work when no one else was there and another time let her child step behind the teller line was fired for two security violations while a coworker who did the same things was merely given a written warning and put on probation. The court found that a jury would have to decide whether the difference in discipline was due to a legitimate reason or because the employee has a disabled daughter and had just been approved for FMLA leave. This case is but one of many where a procedure used to discipline or the level of discipline imposed created triable issues on whether the employer’s reasons were pretext for discrimination or retaliation. To avoid trial, some employers need only ask themselves a few questions before disciplining an employee.

Are you following your own disciplinary policy or standard procedures?

Sometimes, an employer’s failure to follow its own disciplinary policy is evidence that its reason for disciplining an employee is pretext. In Linkous v Stellarone Bank, a long-time employee was fired for making a suggestive comment. Refusing to grant summary judgment for her employer on her age bias claim, the court noted her recent positive reviews and the company’s corrective action policy, which provided that most first-time disciplinary problems were to be handled with a warning or additional training. A jury could be suspicious of the refusal to offer such measures to an employee who was recently so highly regarded, the court found. Similarly, the Seventh Circuit reversed summary judgment on a state gaming board employee’s Title VII and First Amendment retaliation claims, finding that irregularities in and the breadth of an internal investigation into alleged wrongdoing that the state police already found unsubstantiated presented a “convincing mosaic” of evidence that the gaming board was only interested in seeing him punished for helping a coworker sue the board (Hobgood v Illinois Gaming Board).

Is the timing of the discipline suspicious?

In most cases, timing is important. If a supervisor learns of an employee’s violation of company policy but does not take any action until a few months later, a court could find the misconduct wasn’t really worthy of discipline but was just being used to justify a decision that the employer wanted to take for some other unlawful reason. In McCallum v Archstone Communities LLC, for example, evidence that an employee was rated as “meets expectations” despite ongoing policy violations but was then fired for the violations after she announced her pregnancy, combined with her manager’s negative reaction to the pregnancy and the employer’s failure to follow its own policy in investigating the misconduct, precluded summary judgment on the employee’s pregnancy bias claim. And in the Terpo case discussed above, the employee’s supervisor learned of one of the two policy violations that formed the basis for the termination months before recommending her discharge but, in the meantime, the employee requested FMLA leave.

Timing is also important because close temporal proximity between a protected activity (e.g., complaining of discrimination) and an adverse employment action can suggest an employer’s reason for taking the action was pretextual. Courts vary as to what is close enough to be suspicious. However, most hold that while close temporal proximity is enough for a prima facie case of discrimination or retaliation, it is not enough, by itself, to show pretext. For example, a recruiter for a retained search firm who was fired two months after announcing her pregnancy and just a day after asking about maternity leave showed suspicious timing, but it only created triable issues on pretext when considered in conjunction with comments made by decisionmakers and evidence of her prior positive feedback (Dominick v Hospitality Valuation Services, Inc).

Has another worker engaged in similar misconduct?

Consistency is also very important. If two employees have engaged in similar misconduct but did not receive the same discipline, the question is why. If the coworker had a similar position, similar disciplinary or performance history, and the same supervisor, the question becomes even more important because the coworker is considered “similarly situated” and a good comparator for purposes of analyzing discrimination or retaliation claims. Note that courts do not require that the coworker have held the identical position or have engaged in identical misconduct as the employee who filed suit, so long as the two are similar enough to compare.

For example, in Lerman v Turner, a tenured professor who was given the option of being fired or resigning after she allegedly mishandled grant money could proceed on her discrimination claims where the timing and approach of the college’s investigation suggested pretext and a comparator was treated differently. The professor identified four comparators, but the court rejected one because he was subjected to the same adverse action and another because he was accused of different misconduct (selling college property). The third and fourth had potential even though they were non-tenured faculty, but the third was rejected as a comparator because he was not a primary investigator on the grants so was not subjected to the same standards as the employee. The fourth sufficed as a comparator, however, because he was in charge of administering grant funds. He got reprimanded (but not fired) for invoicing work that had not yet been completed.

Even if there is no doubt that an employee violated a policy, employers must ensure that the level of discipline is consistent with that imposed against others who engaged in similar conduct. In Bowditch v Mettler Toledo International, Inc, an employee who was fired for sending sexually explicit emails in violation of an employer’s policy could proceed to trial on his age bias claim because the company did not fire younger employees for substantially similar conduct. Likewise, in Dall v St. Catherine of Siena Medical Center, an employee who was constructively discharged after taking a picture up a nurse’s dress survived summary judgment on his gender bias claim because the nurse engaged in similar, if not worse, conduct and she was not even disciplined.

Checklist of questions

When an employer’s decision implicates all three issues — not following usual procedures, making a disciplinary decision at a suspicious time, and treating similarly situated employees differently — the discipline can be particularly hard to defend in court. For example, a long-time female deputy, who started receiving reprimands soon after complaining about having to re-interview before receiving a second K9 dog while male deputies automatically received dogs when theirs retired, and who was demoted for improperly disposing of property that had no evidentiary value while similarly situated males were not, survived summary judgment on her gender bias claim under both the direct and indirect methods of proof (Aldridge v Lake County Sheriff’s Office).

With that in mind, it might be advisable to have a list of questions to be answered before any discipline is imposed (or recommended), including:

  • Is the discipline justified by a legitimate nondiscriminatory or retaliatory reason?
  • Is any conclusion that misconduct occurred supported by an investigation that would be considered impartial? Did the investigation follow the employer’s normal procedures?
  • Did the employee get to defend his or her actions before discipline was imposed?
  • Is the level of discipline consistent with the employer’s policy?
  • Is the timing of the discipline appropriate (e.g., reasonably proximate to the misconduct and after an investigation)?
  • Have similarly situated workers engaged in similar misconduct and, if so, did they receive the same or similar discipline?

In addition to asking such specific questions, take a step back and try to look at the situation from an outsider’s perspective. How would a jury view the decisions made and actions taken?