Don’t overlook fresh evidence that the employee you fired deserved to go

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in Discrimination and Harassment,HR Management,Human Resources

Sometimes, employers fire employees for the wrong reasons and end up in litigation. Then, while preparing to defend against the wrongful-termination case, they discover other—perhaps even better—reasons to have terminated the employee.

Don’t ignore the new evidence. Instead, make sure your attorneys know about it. They can then argue to the court that you would have fired the employee anyway, had you known then what you know now.

The court may not dismiss the employee’s entire lawsuit, but chances are good it won’t order you to rehire her or pay for future lost wages. That can substantially limit your liability.

Recent case:
Leeann Martuch worked in the HR office when she befriended another HR manager. When that manager was fired, Martuch encouraged her to sue for age discrimination.

Martuch was then discharged and she sued, alleging she had been fired for supporting her former colleague’s age discrimination lawsuit, in violation of the Michigan Civil Rights Act.

Then her former employer discovered that Martuch had downloaded, printed and copied official HR files before she was shown the door. The company said that was grounds for discharge, since HR files are confidential.

The court said the company could use that as evidence it would have fired Martuch anyway, regardless of whether it had fired her for illegal reasons in the first place. The evidence may mean that if the company loses the lawsuit, it still won’t have to rehire Martuch or pay her for future lost wages. (Martuch v. St. Mary’s Medical Center, No. 274267, Court of Appeals of Michigan, 2008)

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LeeAnn Martuch April 12, 2013 at 12:22 pm

This is not true. The only thing that was printed off my computer (and not removed from the building) was a copy of files that was accessed by someone other than myself in my absence. The hospital was watching everyone in HR very closely (based on the previous HR employee that was suing) and someone accessed my computer in my absence (I had a dentist appt that day and my direct supervisor asked me to leave my computer open). When I returned to work the following morning there were several dozen documents that had been accessed on my computer (nothing important but they contained the names of the 17 employees that had been terminated in the last month). Someone had done a search on my computer with these ex-employees names (I assumed to see if I was in contact or sending them info for their lawsuits). The only thing they found were correspondence that I typed for the HR president to these employees from previous years. I printed off a copy of the accessed files and took them to a notory public (another employee in the administration area of the hospital and the assistant of the then-president) and asked her to keep a copy should they fire me. This was done for my protection, but they turned it around as me removing files, which I did not do.

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