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Back up discipline with details from your investigation

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in Discrimination and Harassment,Employment Law,Firing,Human Resources

Like any responsible employer, your organization probably has a comprehensive employee handbook that details your internal policies and how you handle disciplinary decisions. But no handbook can cover every possible situation. So it’s not enough for supervisors and managers to simply cite a particular rule violation as the reason for firing or suspending an employee. They should do much more.

Here’s why: If they only list the violation—for example, dereliction of duty for leaving the workplace without permission—an employee alleging some form of discrimination may point to another employee who received a lesser punishment for the same violation.

To counter such a claim, managers and supervisors must be able to accurately describe all the facts about the discipline and what led to it.

That requires carefully documenting the entire investigative and disciplinary process. If they do, they’ll be able to explain why they fired one employee but merely suspended another who broke the same rule.

Recent case: David Cooner was a police officer in Clayton and an avid bodybuilder. Because of his hobby, Cooner follows a specialized and highly regimented diet that often causes gastrointestinal problems, including sudden, frequent and intense urges to use the bathroom. It was this problem that Cooner later would claim triggered a chain of events that ended in his discharge from the police force.

Cooner said that he was looking for a restroom while on patrol duty when he got a call from an old girlfriend. She offered her apartment, which was outside the jurisdiction. He then took the patrol car to her apartment.

A neighbor saw the car and called the police to inquire why it was parked there. This prompted a visit from a supervisor, who apparently looked in the window and saw Cooner with his pants down walking toward the bathroom.

He assumed Cooner was having sex while on duty and had traveled outside his jurisdiction to do so.

The department fired Cooner, who is white, for leaving the jurisdiction, which his supervisors said put his fellow officers in danger. He sued, alleging race discrimination, claiming that a black police officer had been treated better when charged with the same offense.

But the police department was able to show that the facts underlying each case were different. In the black officer’s case, he had been called to court and was not expected to be on duty all day when he left the courthouse and went home rather than return to the station. That, the department explained, meant he never endangered fellow officers because none expected him to be on duty. But Cooner, it argued, actually placed his fellow officers in danger because he would have been unable to respond immediately to an assistance call from his ex-girlfriend’s house (regardless of what he actually was doing there—either going to the bathroom or having sex).

The court agreed with the police department. Although both officers violated the same rule, the underlying facts were different—and the punishment could, therefore, be different, too. (Cooner v. Town of Clayton, No. 5:06-CV-338, ED NC, 2008)

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