When terminating an employee, employers need only one
reason. Of course, there is rarely just a single reason for reaching the
decision. But the existence of multiple reasons does not mandate that each
reason be shared with the employee. In other words, when an employer
makes the decision to terminate, there should be only one reason upon which the
employer relies and which is shared with the employee-the "final straw." When
an employer changes its "final straw," it raises doubts both with the employee
and with the court and changing reasons are evidence of unlawful
In Smizer v. Community Mennonite Early Learning Center,
the employer told the employee that he was being fired due to a Facebook
posting he'd made. But the employee didn't buy it. He claimed that he really
was fired because of his "tardiness and lack of cleanliness in his
classroom." He claimed that similarly situated female employees, who also
were tardy and who kept equally messy classrooms, had not been fired.
If this claim were true, and there were late and messy
female employees who had not been fired and the plaintiff was really
fired for these reasons, it would support the plaintiff's Title VII
claim. So the plaintiff sought the court to compel his former employer to
produce documents he claimed would show these failings of his female
The employer responded that evidence relating to
tardiness and messiness were not relevant to the suit because, as you may
recall, it fired the plaintiff due to a "troubling" comment he'd made about
coworkers on his Facebook page. Thus, the employer contended, the evidence that
the plaintiff sought was irrelevant to his claim.
The court disagreed. In its opinion, it stated that
the plaintiff had provided "ample documentation" tending to show that the
Facebook posting may not have been the real reason for his
termination. Instead, the documentation apparently showed that the
employer had claimed at various other times that there were other reasons for
terminating Smizer-including his tardiness and lack of cleanliness. In
employment-discrimination claims, "a shifting justification for an employment
action can itself be circumstantial evidence of an unlawful motive."
Because evidence of "shifting justifications" may be admissible at trial, the
requested documents were discoverable and ordered the employer to produce
So what's the big lesson employers can learn from this
story? In short, pick a reason and stick to it. One reason to
terminate an employee is all you need-and all you should have. Certainly,
there may be (and usually is) a long history of performance issues with the
employee. And all of these would be relevant to the employer's decision
to proceed to termination. But the "final straw" is not a "bail of hay."
Pick a reason, stick with it, and don't muck it up by giving multiple reasons
for the decision at the termination meeting or in a termination letter.
If you've done what you're supposed to do, you've addressed the other issues as
they came up with the employee and he's aware of those issues.
Smizer v. Community Mennonite Early Learning
No. 10 C 4304, 2011 U.S. Dist. LEXIS 102212 (N.D. Ill. Sept. 7, 2011).
Bad Reason #29 to Fire an Employee
Don't Hate Me Because I'm Brilliant: One Employee's Tale
3d Cir.: No Protection for an Employee Who Lies
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog. Ms. DiBianca is an attorney with
Young, Conaway, Stargatt & Taylor, LLP.
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