My colleague, Bob McCabe, has a saying that goes like this: "Don’t take action against your worst employee that you wouldn’t take against your best employee under the same set of circumstances." It’s good advice to employers, who are, after all, only human, and can let emotions or frustrations get in the way of thoroughly sound employment decisions.
Take the recent case by a discharged employee of Staples in New York. The employee, who had worked for the company for about a dozen years, had spent the previous two years working with lifting restrictions in a job where lifting played a significant part. In fact, the employee’s restrictions were so significant that it was reported that her co-workers often assisted her, sometimes requiring them to stay beyond their shift. Shortly before her discharge, her supervisor reported that she was only achieving 40% productivity. The employee’s supervisor was clearly frustrated with the employee’s situation and sent several emails to H. R. expressing that frustration and seeking assistance. H. R. at one point responded by stating that the situation would be resolved soon.
Readers unfamiliar with the case might think that the employee was discharged because she could not perform the essential functions of the job with or without an accommodation. That would be wrong. She was discharged for stealing a small bag of chips from a lunch bag belonging to a co-worker. I don’t dispute that employees rightfully become irritated when someone steals their food, and an employer can and should discipline food thieves, but a few things were just not right about this situation.
First of all, the company conducted what appears to be a rather cursory investigation into “chip-gate.” They reviewed a grainy video which appeared to show the plaintiff taking something out of a lunch bag. In an interview with the plaintiff, she said that she believed that she was taking the chips that her sister had left for her. The investigation did not include an interview of the plaintiff’s sister, but it was noted that the plaintiff was previously a suspect in a yogurt theft. You can see how dangerous this situation had become. First a yogurt, then chips; what would be next – leftover pizza? In any event, the employee was fired for theft and she sued the company claiming that theft was just a pretextual reason for discharging her because of her disability.
A New York federal court found that the email messages about plaintiff’s disability and irritation regarding her accommodation, along with the perfunctory investigation into the theft allegations, established enough question of fact to require a trial on the merits of plaintiff’s claim.
A couple of things jump out from this case. One is that employers should not let fester a problem with a reasonable accommodation. It is obvious that the company and the employee should have reviewed other possible accommodations for her disability because the company and the employee were just limping along with their plan despite the fact that the reasonable accommodations given to plaintiff weren’t working. Instead of addressing the situation, the parties just complained about it. If an employee cannot perform to expectations despite a reasonable accommodation for their disability, the employer has to determine whether a different accommodation is available or if the employee’s condition cannot be accommodated and it’s time to cut ties.
The frustration built up from the employee not meeting expectations, resulting in stress for co-workers and supervisors, likely influenced the supervisor’s decision to discharge the plaintiff for taking someone else’s bag of chips. Had they only applied the Bob McCabe rule, they may have concluded that had plaintiff been their best employee, they wouldn’t fire her for taking a bag of chips, so they shouldn’t fire her for that offense as an employee with whom the company was frustrated over an apparent unsuccessful disability accommodation.
