When terminating an employee, employers need only one reason. Of course, there is rarely just a single reason for reaching the decision. But the existence of multiple reasons does not mandate that each reason be shared with the employee. In other words, when an employer makes the decision to terminate, there should be only one reason upon which the employer relies and which is shared with the employee-the “final straw.” When an employer changes its “final straw,” it raises doubts both with the employee and with the court and changing reasons are evidence of unlawful discrimination.
In Smizer v. Community Mennonite Early Learning Center, the employer told the employee that he was being fired due to a Facebook posting he’d made. But the employee didn’t buy it. He claimed that he really was fired because of his “tardiness and lack of cleanliness in his classroom.” He claimed that similarly situated female employees, who also were tardy and who kept equally messy classrooms, had not been fired.
If this claim were true, and there were late and messy female employees who had not been fired and the plaintiff was really fired for these reasons, it would support the plaintiff’s Title VII claim. So the plaintiff sought the court to compel his former employer to produce documents he claimed would show these failings of his female counterparts.
The employer responded that evidence relating to tardiness and messiness were not relevant to the suit because, as you may recall, it fired the plaintiff due to a “troubling” comment he’d made about coworkers on his Facebook page. Thus, the employer contended, the evidence that the plaintiff sought was irrelevant to his claim.
The court disagreed. In its opinion, it stated that the plaintiff had provided “ample documentation” tending to show that the Facebook posting may not have been the real reason for his termination. Instead, the documentation apparently showed that the employer had claimed at various other times that there were other reasons for terminating Smizer-including his tardiness and lack of cleanliness. In employment-discrimination claims, “a shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive.” Because evidence of “shifting justifications” may be admissible at trial, the requested documents were discoverable and ordered the employer to produce them.
So what’s the big lesson employers can learn from this story? In short, pick a reason and stick to it. One reason to terminate an employee is all you need-and all you should have. Certainly, there may be (and usually is) a long history of performance issues with the employee. And all of these would be relevant to the employer’s decision to proceed to termination. But the “final straw” is not a “bail of hay.” Pick a reason, stick with it, and don’t muck it up by giving multiple reasons for the decision at the termination meeting or in a termination letter. If you’ve done what you’re supposed to do, you’ve addressed the other issues as they came up with the employee and he’s aware of those issues.
Smizer v. Community Mennonite Early Learning Ctr., No. 10 C 4304, 2011 U.S. Dist. LEXIS 102212 (N.D. Ill. Sept. 7, 2011).