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Tolerance for Prior Misconduct Does Not Prevent Termination Based on Latest Behavior

    Client Alerts
  • December 19, 2014
Some employers have a high threshold for tolerating abusive employees. Outbursts or confrontations that are grounds for automatic termination by one company may only prompt corrective action from another. A recent decision from the Ninth Circuit Court of Appeals assures employers that their failure to take decisive action in response to an initial incident does not tie their hands when dealing with a subsequent event.

In Curley v. City of N. Las Vegas, the plaintiff requested accommodation for a hearing disability, but was fired within a few weeks of asking for the accommodation . He sued claiming discrimination under the Americans with Disabilities Act. The employer countered with information confirming that the plaintiff had been fired for confrontations with his supervisor and coworkers. At one point, he threatened to shoot his supervisor’s children in the kneecaps.

In response to this evidence, the plaintiff claimed that it was pretext for unlawful discrimination. He asserted that he had been accused of similar behavior in the past, but had not been fired, or warned that repetition would result in termination. The Ninth Circuit rejected this argument, stating that prior leniency is not evidence of current retaliation. The employer had the right to review and take appropriate action based on the particular circumstances of the current workplace events.

This decision prevents a situation where employers would fear taking less than the maximum measures when confronted with a disciplinary matter, out of fear that it would prevent them from later terminating the employee for similar behavior. While employers should strive for general consistency in their treatment of employees, the failure to terminate an employee for past misconduct should not prevent later taking this step if it is repeated.