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‘Last straw’ justification OK if you can prove earlier problems

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Sometimes, it’s the little things that finally lead to termination. An employee may have had performance issues and attitude problems for a long time, yet hasn’t been discharged.

It may be because of workflow requirements, or because the organization wants to give that employee every benefit of the doubt. But then the employee pulls one more stunt, and his or her supervisors have had it.

If that’s the case, rest assured that you can take action if you can document the earlier problems and you haven’t treated someone outside the employee’s protected class more leniently.

Recent case: Roni Martinez and Daysi Padron, who are Hispanic siblings, worked for Henderson County for 10 years. During that decade, supervisors received a series of complaints about the two, including suggestions that Martinez sexually harassed female co-workers and that Padron didn’t get her work done.

The last straw came when an employee reported that she had observed Martinez harassing a new employee. The company fired Martinez. Then, Padron approached the new employee to chastise her for getting her brother in trouble. She was fired, too.

The pair sued, alleging they had been fired because they were Hispanic. But the county had one of their supervisors testify about all the problems he had had with both employees over the years.

Neither brother nor sister could show that non-Hispanics had been treated more leniently, so the case was dismissed. (Martinez v. Henderson County, No. 6:06-CV-340, ED TX, 2007)

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