January 2013

By: James B. Sherman, Esq. & Phoebe A. Taurick, Esq.

An employee, who complained about discrimination based on race and national origin before being terminated for poor performance, also claimed that a human resources manager told him he was being terminated for “spreading rumors” about discrimination in the company. In denying the employer’s motion to dismiss the employee’s lawsuit, a federal court held that this lone allegation, if true, would constitute “direct evidence” of unlawful retaliation.

The plaintiff in this case made numerous complaints of discrimination by his coworkers and supervisors, both internally and to the EEOC. The court held that even though the HR manager who allegedly made the “spreading rumors” comment was not ultimately responsible for the decision to terminate the employee, “statements from those ‘closely involved’ in hiring or termination decisions may be direct evidence of discrimination.”

Whether or not this employee’s allegations are true must now be decided at trial. One would certainly hope that a human resources professional would know better than to make such a condemning comment during a termination meeting – especially where it involved an employee who already had made allegations of discrimination and filed an EEOC charge. Still, this case serves as a lesson to all employers and business managers that termination decisions and the meetings to carry them out deserve careful attention and planning.

Tips to avoid a similar fate as the employer/HR manager in this particular case include time-honored, as well as new, tactics. A well known and practiced procedure is to always have a witness present at a termination meeting. However, in court even 10 company witnesses denying a comment of the sort alleged in this case would not avoid a trial over an employee’s sworn claim to the contrary. Some employers look to technology and tape record such meetings. This is generally not favored and depending on state law, it may actually be illegal if recordings are surreptitiously made. Audio tapes can also work both ways and record things that actually hurt the employer. So here are some ideas that we recommend:

• Do not hold a termination meeting unless/until every detail has been carefully and thoughtfully considered and determined (e.g. the precise reason(s) for termination and basis to support them are nailed down, in writing, as well as how the decision will be communicated and by whom).
• It is recommended that you have a written agenda for the meeting and that it is followed closely. Termination meetings should not be to haggle about the decision (that should have already been made) but to communicate it.
• Have the reason(s) for termination prepared in writing to be given to the employee in the meeting. Note: This may not be required; however, in Minnesota and several other states employees have the right to ask that the reason(s) for termination be provided to them in writing, anyway, and frankly we see too many EEOC and related state discrimination/retaliation charges that allege no reason was given for the termination.
• An oldie but a goodie, we do recommend having a witness present at all times during a termination meeting. It may not resolve all issues but it sure can help avoid many of them.

By having a written script and following it closely, it may be possible to overcome allegations made by a discharged employee regarding what was said during a termination meeting. There are many more details to consider throughout the termination process than can be set out in this short article, especially when terminating a “problem employee” likely to sue. For more information on this touchy subject, or to discuss a particular problematic discipline/discharge situation, feel free to call James Sherman at (952) 746-1700 or email jasherman@wesselsherman.com.