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Fictional Mailbag: Termination Without Documentation Risks Retaliation Liability

April 13, 2017

By Michael G. McClory

Retaliation is in the news, which makes today’s (fictional) mailbag letter timely.  Melanie, the HR Manager at a local advertising agency, tells The Bullard Edge that she really wants to terminate Spencer for his continuing misconduct and poor performance.  However, Mel (as she signed her letter) admits that her documentation has been poor.  She also notes that her boss is concerned about a possible retaliation claim given that Spencer is disabled and recently complained about disability-related harassment.  It sounds like there might be good reason for worry.  Mel’s letter and our response follow.
Mel’s Question:
Let me just tell you up front.  Spencer is the worst employee in history.  No lie.  So, before you tell me that I can’t fire him, please hear me out.
You may or may not have heard of our company, Mid-Town Two-Timers.  It is not what you think.  We are a follow-on advertising agency.  Let’s say, for example, that a hypothetical burger company had an advertising slogan like, “Have it your way.”  Eventually, that slogan might get stale.  Enter Two-Timers with a follow-on slogan, maybe something like, “Where you’re the burger meister.”  That kind of thing.  We are not huge, but we are the second best follow-on agency in town and I like to think we try harder.
As the HR Manager I am very familiar with Spencer.  He works as a sloganeer in Slogan Group 1.  The sloganeers in each group split time between collectively brainstorming and individually noodling.  Spencer’s direct boss, Sue, is constantly calling me about this problem or that problem and the problem almost always is Spencer.
The bottom line is that I have at least three independent reasons to fire Spencer.  Any one of these things would enough to support a termination, but I have three. 
Reason One:
Spencer is always late.  I exaggerate.  It is not always, but it seems that way.  It probably happens two or three times a week and this has been going on for months.  We are going to start tracking it better.  (Both Sue and I will swear to it, though.)
Reason Two:
Spencer lies about his productivity.  As far as I know he has not had a marketable idea the whole time he has been here.  Nevertheless, he has attached his name to several of our better follow-on campaigns.  For example, everyone here knows that Floyd is responsible for the “Ice cream for the soul” campaign that is so popular right now.  We know it was Floyd because he sent an email to Sue three months ago right after coming up with the slogan during a lunch break.  Spencer, who just happened to be at the same restaurant, spoke with Floyd briefly and later claimed that they brainstormed.  Floyd rolled over and shared credit with Spencer, but we know better.
Reason Three:
Just last month Spencer told a prospective client that there was no way Two-Timers would be able to meet the client’s deadline, which prompted the client to go back to its regular agency.  We have a rule against employees badmouthing the company.  Spencer says he was simply being honest about the likely turnaround time.
The one problem we have is that I do not have any documentation.  As an HR Manager I know that I am supposed to have that, but some of these things are hard to document and with the tardies we just let it slide for a while. 
The other problem we have (so I guess there are two problems) has to do with a complaint Spencer made.  He visited with me three weeks ago and complained that Robbynn had been mocking his hearing impairment.  (Spencer wears a hearing aid.)  I investigated.  There was a brainstorming session where Robbynn repeatedly said “What’s that?” to Spencer.  She said that she actually could not hear him; Spencer said no one else made comments like that and that Robbynn kept shooting “looks” at him.  Last week I told them both that the investigation was inconclusive, although I did advise Robbynn to make sure that she is respectful to all of her colleagues.
CFO Dana, who is my boss, does not want me to fire Spencer.  She thinks the combination of limited documentation plus a recent complaint will allow Spencer to claim retaliation for protected activity.  I don’t buy it.  He was late, he is a liar, and he bad-mouthed the company.  Am I right? 
The Bullard Edge‘s Response:
As you know from our other responses to (fictional) mailbag letters, The Bullard Edge does not give legal advice.  Instead, we limit our response to providing a generic look at applicable law and at the kind of facts that are relevant. 
Mel, let’s start with the obvious issue.  You say that Spencer is a bad employee (the “worst employee in history” is how you phrased it), but you do not have anything other than your word, and maybe Sue’s word, to support that.  Here is what we see.
  • First, you state that Spencer is late two or three times a week and that you “are going to start tracking it better.”  We assume that you would have mentioned it in your letter if you had a record of his tardiness (from time sheets or a time clock or something else). 
  • Similarly, after you say that Spencer lies, you give a several-months old example of him stealing credit for an advertising campaign.  However, the employee from whom you claim Spencer stole credit apparently agreed with Spencer; maybe Floyd was bullied or just did not want to raise a fuss, but he gave partial credit to Spencer. 
  • Lastly, you claim that Spencer broke a rule against badmouthing the company to clients.  From your letter it appears that Spencer gave what he thought was an honest response to a prospective client about turnaround and you do not have anything that proves otherwise.
On its own, this seems like a weak case for termination.  Now, let’s layer onto that case the bombshell that you dropped at the end of your letter: Spencer recently complained about disability harassment.  He has a disability (hearing impairment) and complained about statements made by another employee (which statements you verified in your investigation).  The investigation was inconclusive because you could not determine whether Robbynn was mocking Spencer or if she really could not hear him. 
Just three weeks have passed since Spencer complained and you want to fire him for things that allegedly happened before the complaint.  While we have no reason to doubt your truthfulness, Mel, the timing of things does not look great.
EEOC, which would have enforcement authority over a claim of retaliation, describes retaliation as taking adverse action against an employee because the employee has engaged in some protected conduct, such as “opposing discrimination.”  (See this EEOC article titled Retaliation – Making It Personal.)  In your case, Spencer could argue that Two-Timers is taking adverse action (termination) because of his protected conduct (opposing discrimination based on his disability). 
We note that Two-Timers would be in a better position to defend against such a claim if it had documentation of Spencer’s misconduct.  We think you would agree with this.
We also note that even with documentation Two-Timers would need to be able to explain the timing of the termination.  As we understand it, all of the misconduct (except for a tardy or two) occurred before Spencer complained about discrimination.  Two-Timers did not terminate him at the time; in fact, you did not mention any lesser form of adverse action having been taken (such as a verbal counseling or a written warning).  Even if you were thinking about termination before the discrimination complaint, there is nothing you mentioned to support it.  Thus, we think you might have a timing problem.
As a matter of best practices, we have at least four suggestions.
First, make sure that your rules are clear and well publicized.  If there are rules related to claiming credit for ideas or interacting with prospective clients, make sure those rules are clear.
Second, keep contemporaneous records when rules are broken or performance expectations are not met.  In other words, document, document, document.
Third, enforce rules uniformly with respect to all employees.  We do not see anything in your letter to suggest Two-Timers is not enforcing rules uniformly; this is just a reminder that consistency is a best practice.
Fourth, discipline is an area where consistency is especially important.  When disciplining an employee for misconduct, you want to be consistent with the sanction.  For example, if an employer’s policies say that the normal sanction for three tardies is a written warning, then the employer should be consistent with that.  A lack of consistency opens an employer up to a claim that a more severe adverse action in a particular instance was meted out for discriminatory or retaliatory reason. 
EEOC Activity:  As a final note, please remember that EEOC continues to aggressively pursue retaliation claims.  On Monday of this week, EEOC issued press releases regarding settlements of three retaliation claims.  Claim one, which settled for $35,000, featured a termination shortly after the employee made internal claims of alleged sex harassment.  Claim two, which settled for $45,000, concerned a termination days after an employee complained that he had been denied a promotion due to his race.  Claim three, which settled for $150,000, concerned a job offer having been revoked shortly after a request for religious accommodation.  These claims may or may not have had merit; EEOC’s press releases notoriously present only one side of the story.  Nevertheless, the fact that there were three settlements announced this week alone proves that this is an area of active interest to the agency.
We hope this helps you and your boss analyze the Spencer situation.
Best regards,
The Bullard Edge