We always advise our clients to avoid making up a reason for discharging an employee, even if the rationale for that is to “be nice” or soften the blow of the termination. It’s simple: if an employer has a lawful reason for discharging an employee (and we assume that they do) they should notify the employee of that reason when they terminate the employee. When employers change their “story” or give shifting reasons for taking action against an employee, it raises suspicion that the employer is hiding the real reason for the action and that this real reason is unlawful.
Take this case in point. Yesterday, the 10th Circuit Court of Appeals reversed the dismissal of the plaintiff’s pregnancy and retaliation claims against a company that provides services to a correctional facility in Kansas. The plaintiff worked in the facility dispensing medications to detainees. When she became pregnant, one of her supervisors allegedly made a comment that he didn’t know how he would handle all these pregnant women, as she was one of three women who were pregnant at the time.
Not too long thereafter, plaintiff received a note from a detainee commenting on her looks and calling her a “sexy lady.” She took the note home with her that night and the next day reported it and made a complaint of sexual harassment. The company discharged her shortly afterwards, stating the reason for her termination as based on the severity of the company’s “findings” without specifying the findings. Later it stated that she was fired for violating the policy prohibiting fraternization with a detainee and then subsequently changed its reason again for firing her to failure to report receipt of the note in a timely manner.
In reversing the lower court’s dismissal of the case, the court of appeals noted that the shifting reasons for plaintiff’s discharge which were offered by the company, coupled with her supervisor’s remark about her pregnancy, created a question of motive that should be decided at trial.
While a trial victory for this plaintiff is anything but certain, lawyers for employers generally like to dispose of cases prior to trial simply because trials are expensive for employers and juries can be unpredictable. A sympathetic plaintiff can compel a jury to find in his or her favor based more on emotion than a strict application of the law, leaving the employer with the only option of appealing the decision for review of the legal issues.
Employers should be reminded that prior to discharging an employee, the best practice is to identify the reason or reasons for the decision, document the reason or reasons and notify the employee of this decision and the basis for it, both verbally and in writing so there is no confusion.
