When firing, consider all the circumstances–but prepare for lawsuit

Fired employees who file lawsuits alleging they were singled out for discipline because of some form of discrimination usually follow a basic legal strategy. They try to find a former co-worker outside their protected class who was punished less severely for similar conduct. The goal: To show that they were fired because of discrimination.

Your best defense against those lawsuits is to make sure you carefully document all discipline. Before making a final termination decision, consider all the facts—including past discipline. That makes it harder for the terminated employee to argue that another worker hadn’t been disciplined for the same conduct.

Recent case: Nicole, who is black, worked as a registered nurse but had a spotty attendance history. The mother of five children, she attributed her tardiness to child-care problems. Indeed, her late arrivals improved once she found reliable backup child care.

One day, Nicole arrived early for her shift. As was the custom, nurses were assigned to various stations in the emergency area at the beginning of each shift. On her own, Nicole began working at the triage desk. But then, the nurse manager called in the day’s assignments and placed Nicole at another station.

Nicole said she wanted to stay in triage since she was already working there. She allegedly told another nurse that she didn’t want to work back with “y’all bitches.”

Later that day, Nicole told her supervisor she needed to go home because she wasn’t feeling well. That’s when Nicole was accused of placing a patient in a room without letting anyone know. Nicole explained that she had told someone and thought it had been a co-worker, Carly. Carly is not black.

After clocking out, Nicole went to the cafeteria for a takeout meal. There Carly confronted her, allegedly exclaiming that she was going to tell their supervisor that Nicole had lied, referring to her as “you lying n*****.” More words ensued and Nicole allegedly threatened to punch Carly. Nicole went home and Carly then called 911, reporting that she had been threatened.

Management started an investi­­gation. The next morning, Nicole used the hospital’s internal complaint system to report that Carly had called her a “de­­rogatory name,” without specifying what the name was.

Nicole was suspended pending an investigation and then terminated for a long list of rule violations, in­­cluding poor attendance, leaving a patient unattended and making physical threats against a co-worker.

She sued, alleging she had really been fired for complaining about being called the N-word and that even if she had been fired for arguing with Carly, she was treated unequally since Carly wasn’t fired for her use of a racially charged word.

Nicole’s case was dismissed. The court concluded she wasn’t fired just for getting into an argument and threatening to punch Carly; she was fired for a long list of work problems. Since Carly wasn’t similarly situated, the fact she wasn’t fired didn’t prove race was the underlying reason. Nor was the one-time use of a racial slur by a co-worker enough to create a racially hostile work environment. (Ballard v. Mercy Catholic Medi­­cal Center, No. 12-0779, ED PA, 2013)