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Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law
monthly newsletter. She is highly regarded for her workplace compliance
training that “clicks and sticks,” because it is practical and
memorable. She is also the coauthor of the American Bar Association’s
bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."
The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the
workforce—from boardroom executives to managers and supervisors and to
hourly employees in union and non-union environments.
Have you ever flat-out fired an employee for poor performance without any warning? If employees are “at-will,” you can fire them for any reason or no reason at all, as long as it’s not for a discriminatory or illegal reason. Does that allow you to drop the guillotine without guilt? As a new court ruling shows, supervisors should resist that urge (and give the person a chance to shape up) if that employee recently voiced a complaint about discrimination.
Case in Point: Michael Bruno worked as the director of hospitality for a Mississippi casino for 11 years. Bruno had been looking to hire a buffet manager and eventually located someone who he thought was highly qualified. Bruno told his supervisor, who immediately rejected the applicant as “too old,” saying the casino didn’t need “another squatter,” referring to a 50-year-old employee the supervisor deemed as unproductive.
Bruno argued that it “wasn’t right” to reject the candidate solely on age, noting that the candidate was “very qualified.” Regardless, his supervisor tossed the application back at Bruno shouting “too bad."
Within less than two weeks of his complaint, Bruno was fired without warning. He was only given vague reasons, including that he had “substandard” kitchen cleanliness and managerial performance. Despite the fact that the casino had a progressive disciplinary policy, it was ignored in Bruno’s case. He wasn’t given any chance to correct his supposed mistakes.
Bruno shot off a retaliation lawsuit under the federal Age Discrimination in Employment Act (ADEA) and state law. He claimed his firing was in retaliation for opposing his supervisor’s discriminatory hiring decision. The casino, however, argued that it had a nondiscriminatory right to fire Bruno for poor performance. (Bruno v. RIH Acquisitions MS 1 LLC d/b/a Bally’s Resorts, N.D. Miss 1/14/08).
How did this case end…and what lessons can be learned?
In this case, the court agreed to send the case along to trial. Reason: the proximity between Bruno’s age-discrimination complaint and his termination. The judge said, “This close time proximity in the context of a lengthy employment at Bally’s, serves to create doubt whether his poor work performance was the real reason for his termination.”
3 Lessons Learned … Without Having to go to Court
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