Last chance agreements make firing safer

A last chance agreement can help solidify a termination because it puts the employee subject to the agreement on different footing than other employees. It becomes harder for that employee to argue that a member of some other protected class received more favorable treatment.

Recent case: Thomas, who is black, began working for Boeing in 1995. After holding different roles over the years, he became a composite fabricator in 2007, doing highly technical work with the sophisticated materials used to make aircraft. Six years into that role, he got into an altercation with his supervisor and was fired.

After his union negotiated a settlement, he was allowed to return to work under the terms of a last chance agreement. This required Thomas to meet regularly with a counselor who worked on-site at Boeing but was employed by a separate counseling company.

On return, Thomas was assigned a new supervisor, who is white. Thomas was the only black employee in this new group. Almost immediately, Thomas complained to his counselor that his new supervisor was having him spend an inordinate amount of time sweeping the floor instead of working as a fabricator. He also complained that he wasn’t being trained well enough.

Then, after being confronted about working unauthorized overtime, he was terminated again.

Thomas sued, alleging that he had been fired on account of his race. He alleged that being forced to sweep was demeaning and that white employees who worked unauthorized overtime were not punished.

But Boeing argued the sweeping was a minor part of Thomas’s job and not evidence of discrimination. It also noted that others who worked unauthorized overtime weren’t on a last chance agreement. That was enough for the court to dismiss Thomas’s lawsuit. (Vaughan v. Boeing, No.15-4845, ED PA, 2017)