We always advise our clients that when they are considering disciplining an employee, it is better to “pull the trigger” sooner rather than later and that they need to be consistent.
In reviewing a recent Seventh Circuit federal decision (we are in the Third Circuit here in Pennsylvania), the Court made several points that I believe are worth noting.
These points all deal with the situation of an employee filing an EEOC discrimination charge (or here in Pennsylvania, filing with the state Human Relations Commission), right before his or her employer disciplines the employee. This federal decision makes clear that prompt action by employers is advisable (so that implementation of the discipline occurs before the discrimination charge is filed); that it is important to document when decisions are actually made (in case the decision is not announced until later); and it is important that what an employer says in different settings is the same (hopefully, for obvious reasons).
In this particular case, the employer took their time in terminating the employee, which allowed the employee time to file two EEOC claims. Further, and perhaps more fatal, the employer said different things in different settings about when it decided to terminate the employee.
In a related First Circuit case, the facts were even more troublesome. In that case, the employee claimed age discrimination to his employer right before he was terminated for unrelated reasons. While the employer may yet prevail, for now, the now former employee still is in court thanks to the First Circuit. More particularly, that Court applied the burden-shifting framework set forth by the U.S. Supreme Court for discrimination cases. That framework imposes a light initial burden on the former employee to establish only that the former employee is protected due to his age (over 40), that the former employee suffered an adverse employment action and that it occurred under circumstances supporting an inference of discrimination.
The Court found that the former employee had satisfied this initial burden. The burden of production then shifted to the employer to present a legitimate nondiscriminatory reason for discharge, which the employer satisfied with its evidence of misconduct. The burden then returned to the former employee to establish pretext by showing that the reason given for termination was false and that discrimination was the real reason.
Here, the Court ruled that the former employee’s evidence could show that the employer did not fire him because of his misconduct but because of his age and his discrimination complaints. Most importantly, the Court noted that the employer had a progressive discipline policy that it applied to other employees but did not apply to the employer. This lack of consistency apparently was fatal, so be forewarned (on both counts.)
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
