How to fire someone fairly: Document your decision

Employers can protect against employment lawsuits with good records showing that all discipline is based on solid business-related reasons. Courts seldom second-guess employer HR decisions as long as they appear to be fair and the employer treats similarly situated workers the same.

Be sure to document reasons that led to your decision to terminate

But no matter how fair you have been, always assume an employee who has been disciplined will sue, alleging some form of discrimination. Be prepared!

Recent case: Detra worked as a teacher for a nonprofit organization that provides child care and learning programs for low-income families. She supervised young children and led them in developmental activities.

Over a three-year period, Detra took FMLA leave for several medical conditions.

First, she needed a week off to treat migraine headaches. She filled out FMLA request forms and leave was approved. Several months later, she followed the same process to take FMLA leave for about five weeks to recover from a lower-back injury.

Then, the following year she was diagnosed with breast cancer and had to undergo a double mastectomy. A vice president asked her to delay the surgery, presumably so a substitute teacher could be arranged. But Detra explained the surgery could not wait, and her employer again approved FMLA leave. She returned to work after about five weeks off and requested intermittent FMLA leave for chemotherapy and other medical treatment.

Meanwhile, Detra had begun cataloging comments others made about her FMLA absences. For example, while discussing her intermittent leave request, she noted that her supervisor warned her she might be fired if she took more time off, even for chemotherapy. After Detra complained to HR, management told the supervisor that the comment had been inappropriate and asked her to apologize to Detra. The employer then transferred the supervisor and Detra’s intermittent leave was approved.

Meanwhile, one of Detra’s co-workers went to her supervisor and reported that she had seen Detra shake a child, spank another and swear in front of children. She also claimed Detra encouraged children to fight one another. That prompted an investigation, including a report to state authorities.

Detra was placed on leave and soon terminated for “substandard work performance,” “improper conduct,” “violation of company policy” and other wrongdoing.

Detra sued, alleging she had been terminated in retaliation for taking FMLA leave and for being disabled.

The employer countered that the individuals who decided to terminate Detra had valid reasons for the decision: Treating children poorly, prompting a state investigation of potential abuse.

The court sided with the employer. It reasoned that FMLA-related comments by a supervisor could be evidence of bias against Detra for taking FMLA leave or being disabled. However, the court concluded that the employer had well-documented, valid and compelling reasons for discharging Detra.

Plus, the supervisor who had made the FMLA leave-related comments wasn’t involved in the termination decision. Thus any bias on her part wasn’t imputed to the employer. The case was dismissed. (Perkins v. Child Care Associates, 5th Cir., 2018)

Tip: When designing your disciplinary plan, require careful documentation.

One important detail: Always record the date when you made a decision to fire

Do you note the date and time of every termination decision? If not, you should.

Here’s why: An employee often knows when she’s about to be terminated. She may be going through a progressive discipline program. Or perhaps she’s on a performance improvement plan or on the receiving end of increasing criticism.

Chances are, she may begin thinking about her options for derailing the firing, including litigation.

And if she files an internal discrimination complaint or even an EEOC complaint, she opens you up for a potential retaliation lawsuit based on her protected activity.

But if you clearly made the termination decision before she filed the complaint, there can be no retaliation. Here’s how it played out in a recent case.

Recent case: Cheryl, a teacher, knew her performance was being scrutinized. Administrators had complained about her classroom policies and poor record of grading student work and entering the grades.

When the school scheduled a meeting to discuss her grading practices, she let her attorney know. The attorney then emailed the school and told them she had just filed an EEOC complaint alleging sex and religious discrimination. At the meeting, the school terminated her.

She sued, alleging retaliation.

But the school provided records showing it had already decided to terminate Cheryl before it scheduled the meeting and therefore before she engaged in protected activity. The court ruled there had been no retaliation. (Simani v. Beechnut Academy, 5th Cir., 2018)

Final note: Assume that any fired employee may sue. Document the disciplinary process as if that’s always the case.