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The Practical Employer

A Reminder That Any Employee Can Sue You at Any Time

Rule of thumb: Before you terminate, make sure that you are imposing similar punishment for similar misconduct to all employees.
Today’s lesson may seem obvious, but it is one worth repeating: any employee, no matter the on-the-job misconduct, can sue you. Filing a lawsuit is one thing, succeeding on that lawsuit is an entirely different animal.
Michael Robinson was not what one would call one of Klosterman Baking’s exemplary employees. Klosterman disciplined him for attendance violations at least 21 different times. He also directed profane language at co-workers at least twice, the second of which led to his termination.
On the first occasion, he told a supervisor that “it was BS” that he was written up for leaving his shift early. On the second, Robinson told a female co-worker who had interrupted his conversation that she “needs to shut the fuck up.” During Klosterman’s investigation of her complaint, it uncovered further misconduct, that Robinson had called a female co-worker at home and harassed her.
Robinson also happens to be African-American, and sued Klosterman for race discrimination following the termination.
The court had little problem dismissing Robinson’s race discrimination claim:

Robinson essentially disputes that Klosterman’s reasoning was sufficient to justify his termination, and argues that Klosterman had a duty to investigate whether Robinson did in fact make a phone call to threaten and harass one of its female employees. Robinson maintains that since it is unproven whether this incident occurred, there is a genuine issue of material fact. Robinson, however, misstates the law. As noted above, an employer does not need to ensure that “no stone is unturned” during its investigation and decision making process, but must demonstrate only “reasonable reliance on the particularized facts that were before it at the time the decision was made.”

Case closed. Escalating misconduct = justifiable and defensible termination.

There is another lesson to teach here. The court ignored Robinson’s unsubstantiated claim that Klosterman treated more favorably white employees who committed more serious misconduct. Yes, you can fire any at-will employee for any reason, and, yes, that employee can sue you.

Before you terminate, however, make sure that you are imposing similar punishment for similar misconduct to all employees. Otherwise, you may convert a bona fide termination into a bona fide litigation headache.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.