‘Piling On’ Penalty Occurs in Firings as Well as Football

At termination time, too many managers take a “more is better” approach to stating grounds for a firing. But courts won’t give you extra points for extra justification. In fact, as this new case shows, piling on the termination reasons—or shifting those reasons—will smell mighty fishy in court …

Case in Point: During her first year as site supervisor for an Indiana security firm, Jennifer Kinney began receiving treatment for depression. During her second year, she requested medical leave for inpatient treatment after having suicidal thoughts. Although the leave was granted, Kinney’s supervisor told her it was “ridiculous” and that she was “overreacting.”

Shortly after Kinney was out on leave, her supervisor held a meeting with another supervisor to review Kinney’s performance deficiencies. They discussed having Kinney “replaced” but noted they “would have to go slowly” to avoid a lawsuit.

Eventually, Kinney tried to return to work but her supervisor refused to let her back on the premises without a medical release. She ran home and got it before her shift started. But the supervisor still would not let her back that day.

The next day she was allowed back to work but was soon written up for having a bad attitude. Eventually she was fired for not following company policies even though other supervisors weren’t even disciplined for similar transgressions.

Kinney sued the company for discrimination under the Americans with Disabilities Act (ADA) and for interfering with her right to take job-protected leave under the Family and Medical Leave Act (FMLA). The company asserted, at different times in the court proceedings, that she was fired for poor performance, failing to enforce company rules and acting defiantly when she returned from medical leave.

What happened next and what lessons can be learned?

The court ruled in favor of Kinney and sent the case to the jury, citing the fact that the company’s stated reasons for firing Kinney “changed over time.” The court noted that an employee can show pretext for bias when, “an employer shows shifting reasons for the adverse employment action at issue.” (Kinney v. Century Servs. Corp. II, S.D. Ind., No. 10-00787, 8/9/11)

3 Lessons Learned … Without Going to Court

1. Establish a reason and don’t shift from it. The court really homed in on the fact that the employer, throughout the litigation, always pointed to new reasons why Kinney was fired. You may think this is making your case stronger but in fact your motive is looking suspicious.

2. Never act shifty. The court was appalled at the supervisor’s incredulous comments about the fact that depression is a protected disability under the ADA.

3. Return to shifts. When employees return from FMLA leave with their proper paperwork, let them back on their shifts. Or, they might just use their days off to see a lawyer.