Having Too Many Reasons To Terminate Someone Is Not Always Better


by Aaron Clark

Clark, Aaron
aclark@mcgrathnorth.com
(402) 341-3070

Many of the articles we publish in our newsletters talk about the “right way” to terminate an employee. Some employers believe that it is better not to provide a reason when firing an employee. This approach may prompt the employee to suspect an unlawful motive. Other employers take the opposite view and believe that it is better to communicate multiple reasons for firing the employee. This approach, however, can also lead to problems as illustrated in a recent Seventh Circuit decision, Hitchcock v. Angel Corps., Inc.

Hitchcock was employed by a home health care agency and brought suit for pregnancy discrimination after she was fired. When Hitchcock notified the agency that she was pregnant, her supervisor expressed concerns about Hitchcock quitting her job after childbirth. In the lawsuit, the supervisor was accused of increasing Hitchcock’s workload prior to her pregnancy leave and making derogatory remarks about how the baby would affect her attendance.

Before taking pregnancy leave, Hitchcock went to the home of an elderly client and met with the client’s son. When she visited, the elderly woman was lying still in her bed. The son indicated that she was sleeping. Hitchcock reported the matter to her employer after concluding that the client “was possibly dying or already dead.” It was later determined that the client had been dead for 2 or 3 days before the employee visited.

The agency terminated Hitchcock and referenced multiple reasons for firing her including violations of internal policies and procedures. The lower court granted summary judgment in favor of the agency. Initially, the agency stated that Hitchcock was fired because she completed an admission on an expired client and her actions compromised health and safety. During the lawsuit, the agency provided other reasons for the discharge. A supervisor for the agency indicated that Hitchcock would have compromised the health and safety of the client (had the client not been deceased) because she failed to take action after discovering dried blood on the patient’s mouth. The owner of the agency stated that Hitchcock was discharged because she performed a deficient assessment on a potential client who was deceased. Finally, the agency also claimed that Hitchcock was fired because she failed to call 911 after leaving the client’s home.

The Seventh Circuit found that the employer offered “four potentially different explanations” for the employee’s firing. The court noted that these rationales were sufficiently inconsistent and could create an inference that they were not the real reason for the termination. By “piling on additional ever-evolving justifications” a reasonable juror could conclude that an unlawful motive existed because the employer could not get its “story straight.” The Seventh Circuit reversed the lower court’s decision and held that the case should proceed to trial.

Lesson Learned for Employers: If you have a good reason to terminate an employee, you should always stick to that reason. It goes without saying that there are cases where an employee may have a long history of performance issues that develop over a period of time. Certainly, all of these performance problems may be relevant to the employer’s decision, however, the real reason to discharge is the “final event” that took place. Providing multiple reasons for a discharge opens the door to inconsistency and may lead a court or a jury to conclude that the reasons are false and a discriminatory motive is present.

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