- A Texas DMV employee was fired for repeatedly violating the employee handbook, not in retaliation for filing a bias lawsuit, the U.S. 5th Circuit Court of Appeals ruled (Miles v. Texas Department of Motor Vehicles, No. 18-50677 (5th Cir. July 10, 2019)).
- The DMV gave evidence that "the employee made false statements to and about his coworkers, misreported a state-wide outage that led to multiple employees working over a weekend, had overall poor job performance, and did not improve even after being placed on a corrective action plan."
- Because the employee failed to connect his filing of a bias lawsuit in 2014 with his termination nearly 18 months later, the 5th Circuit upheld a district court's summary judgment ruling in favor of the DMV.
While timing can help establish the existence of illegal bias or retaliation, it can also work to an employer's favor when (as in this case) the protected activity occurs long before the adverse action.
Nonetheless, proper documentation is always helpful to support the legitimate reasons behind a disciplinary action. In one recent case, for example, good documentation was vital to an employer's defense against allegations of FMLA interference. Another employer was able to prove that an employee's combative actions, not race bias, was responsible for her promotion denial.
What are some common employer mistakes related to documentation? Experts caution against vague documentation (or, worse, no documentation at all); unclear expectations; the use of absolutes like "always" and "never"; drawing legal conclusions; and taking an unhelpfully snarky tone. It's also important to remember that all written communications, including email and instant messages, may someday be used as evidence in court.
Potentially contentious separations are difficult for both HR and the employees involved, but thoughtful offboarding processes can make things easier, especially when employees are not leaving voluntarily. An employee who is shown the door with courtesy and respect may be less likely to harbor grudges that could lead to a lawsuit later on.