Your best practice: progressive discipline
In general, using a sensible progressive discipline program and documenting all disciplinary actions will help you justify a discharge—even in the face of apparent prejudice or bias on the part of individual managers.
It helps show that, in the end, you made the right decision based on solid evidence that the employee should have been fired. Here’s how that played out in a recent case.
Recent case: Brenda was 52 years old and had hepatitis B and osteoarthritis. She worked for the University of Pennsylvania Health System as a communications operator. Her job involved taking emergency calls and activating emergency codes as needed to assure that the right specialists were available when a patient arrived at various hospitals. She also directed ambulances where to go.
Brenda took extensive FMLA and other leave over the years because of her medical problems and to have surgery. She also requested and received multiple reasonable accommodations for her disabilities.
However, her supervisors sometimes expressed frustration that she was so often absent.
The health system uses a five-step progressive discipline process that starts with a warning and ends with termination. Brenda moved through the process with punishments for conduct ranging from failure to submit required doctor’s notes to unprofessional conduct in handling calls.
She was fired after a final warning when she apparently directed an emergency crew to the wrong hospital.
Brenda sued, alleging retaliation for taking FMLA leave and disability discrimination.
The court dismissed the case even though Brenda showed that some of her supervisors had expressed frustration with the amount of leave she took. The carefully documented progressive discipline showed that she was discharged for legitimate reasons unrelated to her leave or disability. (Kelly v. University of Pennsylvania Health System, No. 16-618, ED PA, 2016)