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Looking for Twins: Does Your Employee Discipline Have to Be Identical?

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in Case In Point

Before your organization disciplines an employee, it's always important to ask these questions: Have other employees violated the same policy? If so, what action did we take against that other employee? How similar are those two situations?

One court recently said employers shouldn't search for “identical” situations—“similar” is good enough. In fact, if you don’t discipline “similarly” you might end up with double trouble, as this employer did …

Case in Point: Monica Terpo, who works at an Alabama bank, requested intermittent FMLA leave to take care of her disabled daughter. Two weeks later, on the eve of starting her leave, she was fired.

The bank’s reason? Terpo had violated two bank security policies a couple months earlier—1) Being alone in the bank with her daughter, and 2) Allowing her daughter to be behind the teller line and handle coins.

Terpo sued, saying the real reason was retaliation for her FMLA-leave request. Plus, she said the firing was “discrimination by association” under the Americans with Disabilities Act (ADA) because she was treated differently for having a disabled child.

One of Terpo's main arguments: another co-worker committed similar violations yet was only placed on probation, not fired.

The bank defended itself, arguing that Terpo could not compare herself to the employee put on probation because that person did not commit identical company violations. In essence, the bank said, Terpo had no previous “comparator” to hold up as a role model of how she should be treated, so the bank had the right to fire her.

Second, the bank argued Terpo’s violations were a firing offense regardless of her FMLA status, and they didn’t even know she had a disabled child. Terpo was a poor performer, the company said, and she was fired based solely on underperformance.

The result: The bank needs to prepare to open the vault and grab a shovel.

The court ruled in favor of Terpo, saying she did not have to point to an identical example of another employee who committed the same company violations to prove her case. “The comparator only need be ‘similarly situated’ to the plaintiff and not in every respect,” the court ruled. It said the firing was suspect, then sent her case to a jury to decide. Terpo v. RBC Bank (USA), N.D. Ala., 10/2/13)

3 Lessons Learned … Without Having to Go To Court

  1. Don’t look for twins. The court is looking for “similarly situated” comparisons and not “identical twin” situations. So don’t try to make every employee look like a precedent and treat them differently. The court sees that defense as a red flag for discrimination.
  2. Document in real time. The bank should have documented the policy violations and any performance issues right when they allegedly happened. Delay was bad for the bank because, in the interim, the employee exercised her legal FMLA rights and the firing looked fishy. The court also observed that the company had no previous performance or disciplinary records to support the firing for poor performance.
  3. Stick to the truth. The court noted the bank changed its story about “knowing” then “not knowing” then “knowing but disregarding” the fact that the employee’s daughter was disabled. Stick to the truth, it’s easier to remember during the many years the litigation lasts.

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