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Five questions to ask when firing someone for insubordination

December 29th, 2015  |  Lorene Park

By Lorene D. Park, J.D.

If an employee who was fired for insubordination claims the termination constituted retaliation, discrimination, or other unlawful action, a successful defense (hopefully dismissal before trial) depends largely on context. For example, courts are more likely to doubt that insubordination was the real reason for the termination if the employee had a pristine disciplinary history, or recently had engaged in protected activity by complaining about harassment or other unlawful conduct. On the other hand, employers are more likely to win if the employee’s conduct violated a clear company policy, if he or she had been warned in the past, and if the company investigated the reasons underlying the insubordination.

Context matters. In one case from the federal district court in Connecticut, an employee with an excellent work record had evidence that the supervisor who fired him made multiple, derogatory age-related remarks. Nonetheless, his age discrimination claim failed on summary judgment because he had explicitly defied a direct order from his supervisor in two successive emails, in violation of a clearly articulated policy forbidding that behavior. Evidence that younger employees were not subject to discipline after telling the same supervisor they could not perform assignments was of little help to the employee because he did not show that they had repeatedly defied orders, and the evidence concerning what they actually said was vague (Chapman v. Sikorsky Aircraft Corp., December 3, 2015).

Conversely, an employee’s emails to a supervisor and coworkers evidencing her insubordination, combined with evidence that she had received a warning for poor performance, were not enough to convince a federal court in the District of Columbia to grant the employer summary judgment because there was evidence that the employer did not follow its own disciplinary policy when she was stripped of her supervisory duties, suspended, and constructively terminated. Plus, the adverse actions happened in close temporal proximity to her complaints of discrimination. Thus, her race discrimination and retaliation claims could proceed as to those actions and summary judgment was denied in part (Richardson v. Petasis, December 7, 2015).

Context was also key in a recent Seventh Circuit decision, in which the appeals court affirmed summary judgment for a defense contractor on claims that it fired employees for raising concerns that it falsely represented to the government that helicopter engine parts were safe.  The employer’s stated reason for the termination was that the employees had insubordinately refused to work on the part as instructed. To the court, it was significant that the company thoroughly investigated their safety concerns and found them baseless. That evidence showed that the employees were “terminated because of their insubordination, not protected activity,” the appeals court declared, rejecting their retaliation claims under the False Claims Act (U.S. ex rel. Marshall v. Woodward Inc., December 11, 2015).

Five key questions. The examples could go on and on, but even just these three cases from December highlight five questions employers should ask themselves before firing (or taking another adverse action) against an employee for insubordination:

  1. Was the conduct prohibited by a policy or practice of which the employee was aware?
  2. Has the policy been consistently enforced with respect to all employees and over time?
  3. Does the employee have a history of insubordination, including prior warnings?
  4. Was the employee given a chance to tell his or her side of the story (and did the employer look into his or her allegations, as appropriate)?
  5. Was the employer following its own progressive disciplinary policy or following the requirements of an applicable collective bargaining agreement in meting out the discipline?

If the answer to each of these questions is “yes,” then the employer should have little or no problem defending against a subsequent claim by the employee that the termination was unlawful. If the answer to any of the questions is “no,” then the employer should dig a bit further to make sure termination is the appropriate response to the employee’s insubordination.

Punishment should fit the crime. As one final thought, keep in mind that the punishment should fit the “crime.” The best example of that may be a case from the Fifth Circuit, in which a long-time employee, who had an otherwise pristine disciplinary history, was fired because he shrugged his shoulders in response to a supervisor’s routine question. According to the employee, his mouth was full of coffee at the time and he could not form a vocal response. Given the apparent overreaction in immediately firing the employee, the court found a triable question on whether this was pretext for age discrimination (Salazar v. Cargill Meat Solutions Corp., October 8, 2015).