A poor performer may disappoint on many levels, doing lousy work and failing to get along with others … harassing co-workers and fudging time sheets. While you should document all the problems, you don’t have to cite every one when you terminate the employee. Pick one and stick with it.
Recent case: Olen took a job with the IRS and was to be a probationary employee for one year. He was the only black male in a group of 32 employees. His job was to collect stacks of newly filed tax returns from a truck, perform routine coding on them and then take them back to the truck for further processing.
Soon, a co-worker went to a supervisor and said Olen had told her she didn’t need to check each return. Olen’s supervisor then began checking the stacks and discovered that Olen was checking some, but not all, returns. Olen denied falsifying his work and said he had processed all the documents. He received a warning and from then on, a supervisor checked all of his work.
Olen complained that he was being unfairly criticized. Soon after, he was fired for poor productivity.
He sued, alleging race and sex discrimination. He also argued that because he was fired for one reason—poor productivity—and not for falsifying his work records, the IRS must have been looking for an excuse to fire him. Essentially, he argued that picking a different reason to fire him than the one that was originally raised was evidence that it was just a pretext for discrimination.
The court tossed out the case. It said there was nothing suspicious about choosing one of several reasons for firing Olen. (Gibson v. Geithner, No. 13-2817, 8th Cir., 2015)