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It often makes sense to give a fresh start to a poorly performing employee who has been complaining about discrimination. Place her in another position with a new supervisor, new co-workers and a clean disciplinary record.

Then if her workplace problems persist, you can terminate her without worrying about retaliation claims.

That’s true even if the same upper-level manager makes the final termination decision—as long as the new supervisor didn’t know about the prior problems, discrimination complaints and performance issues, and the firing decision wasn’t based on performance problems that predated the transfer.

Recent case:
Vernell Lloyd, who is black, worked for a large medical center as a registered nurse. She had continual performance problems, which she attributed to race discrimination. She filed a series of EEOC and internal discrimination claims.

When her performance didn’t improve, the senior vice president in charge of nursing services decided to give Lloyd a fresh start.

She was transferred to a different hospital division where she had entirely new co-workers and supervisors. None of Lloyd’s new co-workers or supervisors knew anything about her past performance problems or her EEOC and internal complaints.

Soon, her performance problems resurfaced. After progressive discipline, her new supervisor recommended that she be terminated.

The senior vice president got the recommendation and looked at her new disciplinary records. She concluded that Lloyd should be terminated based on her recent performance at her new assignment.

Lloyd sued, alleging race discrimination. The court dismissed her complaint, reasoning that she really had been given a fresh start in an assignment where no one knew about her past problems or her prior discrimination complaints. (Lloyd v. New Hanover Regional Medical Center, No. 7:06-CV-130, ED NC, 2009)

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