- A college patrol officer who accidentally sent the Director of Public Safety a disparaging email — saying that it was "sad" how many lives she had ruined and how much money the university was "wasting" to keep her — did not show that Arcadia University's reasons for terminating her employment were pretexual, the 3rd U.S. Circuit Court of Appeals ruled (McMullen v. Arcadia University, No. 18-2125 (3rd Cir. August 7, 2019)).
- Because of the email, Catherine McMullen was suspended for three days without pay. She was disciplined for infractions before and after the email and had received a "last chance notification" which cautioned that any further infraction over disparaging and undermining leadership would lead to her termination. After that warning, she was involved in five more incidents meriting discipline.
- McMullen sued, claiming sex bias in violation of Title VII of the Civil Rights Act of 1964. The district court granted summary judgment to the employer, and the 3rd Circuit affirmed. The 3rd Circuit said even if McMullen had established a prima face discrimination case, she did not dispute that Arcadia had presented legitimate, nondiscriminatory reasons for her discharge and had not shown pretext. The 3rd Circuit also said in a footnote that Arcadia was thorough in documenting a list of McMullen's infractions before her termination, which were nondiscriminatory on their face.
When employers can show legitimate, nondiscriminatory reasons for terminating employment, they often prevail in lawsuits. An unsuccessful candidate who applied multiple times for a full-time elementary teaching position in her local district was unable to make a case under the Age Discrimination in Employment Act (ADEA), even though she was older than 40 and passed over twice in favor of younger, less-qualified candidates because the school district was able to show legitimate, nondiscriminatory reasons for choosing the other candidates.
Documentation can be the key to succeeding when employees take employers to court. But, as Allison West, principal at Employment Practices Specialists, told attendees at the Society for Human Resource Management's Employment Law and Legislative Conference earlier this year, it has to be done right. She suggested manager training on the most common employer documentation mistakes:
- No documentation.
- Vague documentation.
- Use of "code words" and phrases.
- Use of absolute terms like "always" and "never".
- Unclear employee expectations.
- Employer doesn't ask the employee questions, which makes conversations appear one-sided.
- Use of phrases such as "bad attitude" or "not fitting in".
- Use of snarky or sarcastic language.
- Making legal conclusions (such as "Bob's conduct violates the law").
- Forgetting that emails last forever.
In instances where there is a valid reason to terminate a worker's employment and strong documentation supporting the decision, then employers should feel free to act, especially in instances where there could be an issue of workplace safety, experts say. Last year, for example, Southwest Airlines prevailed over an employee who was fired for saying he wanted to bring a gun to work — not because, as he claimed, he had taken leave under the Family and Medical Leave Act.