Note firing for straw that broke camel’s back

Former employees who sue over their discharge sometimes try to use their employers’ shifting explanations for the termination as evidence that they were fired for discriminatory reasons. The reasoning goes like this: If the employer tells different stories about why it fired a worker, it must be trying to come up with a good excuse to cover up some underlying discriminatory intent.

The argument sometimes works—unless the employer describes the discharge as the “last straw” in a series of reasons for discipline. A termination notice might, for example, state that the worker was terminated after having been warned that one more incident would mean discharge.

Recent case: Kathleen worked in special education. One supervisor generally rated her as satisfactory, but did note problems with work quality such as lack of accuracy and appropriate planning. A new supervisor was more critical.

Then a state agency noted deficiencies at the school. In response, the school put Kathleen on a performance improvement plan that included deadlines for completing a number of projects. The school terminated Kathleen when she didn’t complete the plan, noting that this was the “last straw.”

Kathleen sued, alleging that the real reason she was fired was her age. As proof, she cited what she described as shifting and contradictory explanations for her discharge, including poor performance generally and failure to complete the plan.

But the court didn’t buy the argument. First, it said that this was not a case of shifting explanations. It was a case of continuing problems culminating in not completing the performance plan as the last straw. (McGuire-Welch v. House of the Good Shepherd et al., 2nd Cir., 2017)

Final note: Courts understand that a new supervisor may bring new, stricter standards for discipline. Even stellar past performance reviews won’t block later documented discipline.