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Sometimes, you just know that the reason a supervisor offers in a memo or e-mail for wanting to fire someone is going to look suspicious if the employee ever sues. If you can’t persuade the supervisor to reconsider, resist the temptation to help sugarcoat the situation with a neutral-sounding reason such as poor performance. It will only make matters worse when the employee’s lawyer inevitably discovers the memo or e-mail.

Recent case: When Patricia Seiber developed a cyst, she told her supervisor she needed time off. He approved a short leave until March 22, the day Seiber was scheduled for a follow-up doctor’s appointment. The supervisor told Seiber to call him with an update right after the appointment.

Seiber didn’t call until the next morning, and explained that she needed a few more days off because her doctor wouldn’t release her to return until March 27. Seiber returned to work on March 27 and was fired a week later, allegedly for “ongoing performance issues.”

When she sued for violation of the FMLA, she got a copy of her supervisor’s memo to HR, which recommended she be fired for not calling him on March 22 right after her doctor’s appointment. The memo stated, “Her appointment was scheduled for 2 p.m. on Wednesday, March 22. She committed to call me after the doctor visit … She did not call on Wednesday, March 22 … The above lack of communication and follow-up is not acceptable.”

The court said a jury should decide whether the real reason she was fired was performance problems or because she took FMLA leave. The memo may well be viewed as the smoking gun. (Seiber v. The Expo Group, No. 3:07-CV-0047, ND TX, 2008)

Texas Employment Law subscribers can download a free HR Specialist white paper titled The Right Way to Fire. It covers at-will employment, building the case for termination and how to avoid six common firing mistakes.

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