Reprinted from the November 15, 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.

Progressive Discipline Isn't Always Step-By-Step

A well-written progressive discipline policy states that the company can bypass disciplinary steps and proceed straight to termination when warranted. No matter how clearly your employer has reserved management’s right to skip steps, though, employees will wonder whether your decision to jump to termination was “warranted" by a discriminatory motive.

SKIPPING YOUR WAY...

“Company policy clearly states that managers are prohibited from approving fee reversals on employees’ accounts without approval from a senior officer,"district manager Keri Summer reminded branch manager Anita Tipton. “Records indicate that you’ve refunded 31 overdraft charges to co-workers’ accounts without approval. That is unacceptable. I’m going to have to terminate you."

“I didn’t know I needed approval. Can’t you just give me a warning?" Tipton pleaded. “Now that I know about the policy, I’ll get approvals."

“You knew about the policy. You signed an acknowledgment form stating that you read and understood the policy after being promoted to branch manager. It’s right here in your personnel file." Summer opened the file.

Tipton quickly changed her tune. “What I meant was, I didn’t know that the policy still applied. Greg doesn’t get approval before reversing fees, so I didn’t think I had to. Just the other day he refunded a fee without approval. He wasn’t even disciplined, let alone fired!

“But then again he’s a man. And everyone knows how you favor the male employees," spat Tipton.

“We aren’t talking about what others did or did not do," Summer calmly stated, making a mental note to investigate Greg’s actions.

“What I did doesn’t warrant termination! It warrants a verbal warning. Or have you forgotten about the company’s progressive discipline policy?"

“I haven’t. It seems, though, that you’ve forgotten that the policy states that in certain situations immediate termination is warranted. This is one of them."

...INTO COURT?

Tipton took her pink slip straight into court, where she accused Summer of sex discrimination. As evidence, she pointed to the fact that Summer:

1. failed to apply the company’s progressive discipline policy; and

2. treated her more harshly than a man who engaged in the same conduct.

She failed to convince the court, though. Here’s why: No company policy required managers to engage in progressive discipline when employees were discovered to have refunded fees on a co-worker’s account. Policy did strictly prohibit the refund practice absent approval. Although termination wasn’t mandatory for Tipton’s infraction and may have been unduly harsh, said the court, her manager had the discretion to fire her and wasn’t bound to issue her a warning before doing so.

Plus, Tipton was not similarly situated with her male co-worker; Summer did not know he had engaged in the misconduct. One can speculate that even if she was aware of his behavior, it’s unlikely a court would have deemed them similarly situated. Reason: There’s a huge difference between making one reversal fee without approval and reversing 31 such fees absent approval.

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