Reprinted from the November 1, 2007, issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Wait Too Long To Terminate, And It Might Be Too Late

An employee’s inappropriate behavior should not be taken lightly, let alone tolerated for a long time. Firing an employee for legitimate behavior issues may look like a suspicious excuse to a court, if the problems were tolerated up until the employee revealed they have a disability. Don’t make the same termination mistake as the following manager did.

A DISABILITY REVEALED

Nick Ditonio worked as an electrician for his company for over eight years. He had superior technical abilities, but his bad attitude and other personality “quirks” left something to be desired. Typically, it was his manager, Garrison Gray, who initiated meetings with him to counsel him about a conflict with a co-worker or an angry outburst. On this day, however, Ditonio asked to meet with Gray.

“I found out I have fibromyalgia,” Ditonio revealed. “It took several tests and months, but my doctor finally pinned it down.”

“Is that the reason you’ve been complaining about being in pain and tired for the past six months?” Gray asked. “I thought you just had arthritis.”

“So did I.”

“Can you still do your job?” Gray inquired.

“Of course. I have been all this time, haven’t I?” Ditonio said.

Ditonio continued working — and being difficult to work with — for the next few weeks. Gray was getting fed up constantly having to run interference between Ditonio and other staff members he managed to anger and annoy. The manager contemplated firing him.

“Enough is enough,” Gray thought to himself. “How many more times can I straighten out another one of Nick’s messes?”

A TERMINATION DECIDED

One day, about five weeks after revealing his fibromyalgia to Gray, Ditonio had yet another argument with a co-worker. That was the final straw. Gray met with him that day.

“Due to today’s incident, your employment is terminated, effective immediately.”

“Wait a minute. I’ve gotten into arguments before and you didn’t do anything then. What’s the difference now?” Ditonio asked.

“The difference is, this company is not going to put up with your attitude anymore. This conflict today started because you were criticizing Hal to his teammates. It was completely uncalled for. Unfortunately for you, Hal found out. It was yet another fire that you started that I had to put out.”

“Like no one else has criticized a co-worker behind their back before. Give me a break.”

“That’s enough. Get out of my office,” Gray demanded.

“I know what’s really going on. You didn’t like it when I told you I have fibromyalgia, so now you’re suddenly firing me over this argument. How convenient for you,” Ditonio said sarcastically.

A LAWSUIT FILED

Just as Ditonio alleged in Gray’s office, so he alleged in an Americans with Disabilities Act lawsuit against the company. The company claimed it would have fired him regardless of the disability, and the decision to terminate had nothing to with his fibromyalgia. The evidence seemed to favor the company, including:

• Ditonio’s record of contention with other employees;
• complaints from other managers about the employee’s negative attitude; and
• instances of other misbehavior, such as backbiting and insubordination.

However, the court questioned why, after eight years of tolerating such behavior, did Gray make the decision to terminate Ditonio now. Court: Evidence of the persistence and longevity of Ditonio’s notable cantankerousness actually favored his case. Reason: The evidence sufficiently demonstrated that Ditonio had always been this way and it wasn’t until just after he informed Gray that he had fibromyalgia that the manager decided to take action.

In addition, there was evidence that the number of complaints about Ditonio’s attitude was similar to the number of complaints about other employees who weren’t fired for their attitude problems.

The court found that Ditonio’s long-term employment made Gray’s decision to terminate him within weeks of learning of his disability less likely to be a coincidence. The court upheld a jury award of $750,000 in damages.

A TERMINATION LESSON LEARNED

Gray was willing to put up with Ditonio’s poor interpersonal skills for many years because of the employee’s stellar technical skills. If you keep on your staff an employee who has racked up a long history of violations, think twice when the day comes that you decide to fire them for those very same violations.

You need to evaluate whether the termination could be perceived as discrimination or retaliation. If the employee has recently revealed a disability or engaged in a protected activity, then you should treat them with kid gloves. That’s not to say you should give them special treatment by allowing them to act out with impunity, but you want to make sure a court won’t conclude that the termination decision was discriminatory or retaliatory. You must:

• Have a solid reason for determining that the employee deserves to be fired now, when they could have been fired before. For example, the most recent violation was especially egregious versus a history of minor infractions.
• Be consistent in documenting other employees for similar behavior and firing them, too, as appropriate.
• Refrain from “building” an array of evidence against the employee.

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