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Failure to Immediately Address Employee Behavioral Issues Not Evidence of Pretext in Later Termination

    Client Alerts
  • 08/02/2019

In employment discrimination cases, when the plaintiff makes out a prima facie claim of bias, the employer must articulate legitimate non-discriminatory reasons for the action. The plaintiff then has the ultimate burden of proving that those proffered reasons are pretext for an illegal motivation. Last week, the Seventh Circuit Court of Appeals held that an employer’s failure to address initial employee conduct issues did not make that basis for eventual termination pretext.

In Graham v. Artic Zone Iceplex, LLC, a Zamboni driver was injured at work and returned to work with significant medical restrictions. The employer terminated his employment one month later following a Zamboni accident that damaged the skating rink. The termination notice cited the accident, along with poor working attitude and insubordination. The employee sued, claiming discrimination under the Americans with Disabilities Act. In his compliant, the plaintiff alleged that the reasons given for the termination were pretext, because the employer had not previously disciplined him for his behavior.

The Seventh Circuit had little problem rejecting this argument. The court held that an employer’s failure to deal with disciplinary issues at an earlier date is not evidence of pretext. Minor grievances can accumulate to the point where termination is justified. The plaintiff could not demonstrate that the noted behaviors did not occur, or that his disability contributed to the termination decision.

Employers can avoid these claims if they can show documented disciplinary actions prior to the termination. Even if these actions only result in verbal counseling, they demonstrate consistent responses to the same or similar conduct. However, this case shows that even if these progressive steps are not taken, the mere fact that the employer delayed taking disciplinary action is not evidence of pretext or a discriminatory motivation.