Employees often believe that an employee’s exercise of a protected right acts as a shield to protect the employee from termination. And often they are right. That shield, however, does not insulate an employee’s poor performance. For example, take King v. Aultman Health Foundation (Stark Cty. Ct. App. 11/30/09) [pdf].
Brianne King took three different medical leaves during her employment, plus intermittent leave under the FMLA. Following her leaves, and during her intermittent leave, she had a documented history of poor attendance:
1. Medical leave for surgery: Mar. 24 – May 5, 2003The court of appeals upheld the trial court’s dismissal of King’s disability discrimination claim:
2. Medical leave for surgery: June – Aug. 2004
- Feb. 2004: written warning for attendance.
- Three-day suspension for missing work from May 9 – May 12, 2004.
- May 14, 2004: written warning that her next call-off in the next four months would result in termination.
3. Medical leave for surgery: Feb. 27 – May 16, 2005
4. Grant of intermittent FMLA leave: Oct. 2005
- Mar. 2006: verbal warning for tardiness.
- Aug. 2006: written warning for tardiness.
- Sept. 2006: two-day suspension without pay, plus six-month probationary period, for tardiness.
- March 19, 2007: written “last chance” suspension for four tardies between Feb. 24 and Mar. 19.
- Apr. 12, 2007: Tardy again.
- Apr. 21, 2007: Again warned that another attendance issue would result in termination.
- May 8, 2007: Forgets she is scheduled to work and misses work.
- May 9, 2007: Resignation in lieu of termination.
[King] has asserted that her inability to come to work in a timely fashion was caused by pain, nausea, fatigue, depression, and the continuing effects of her hysterectomy on her ability to care for herself. However, when [King] was confronted by her supervisors about being tardy, [she] did not ask for an accommodation for a disability, but rather offered various other reasons for her lack of punctuality. The undisputed evidence shows [King] was not terminated for her claimed disability, but rather for tardiness and poor work history. [King] was terminated due to a well-documented, poor attendance record.The hospital prevailed in this lawsuit for three reasons:
- King had serious attendance problems.
- The hospital documented each and every attendance violation.
- The hospital gave King no less than eight chances to correct her attendance problems before it asked her to resign.
In disciplining an employee who has engaged in protected activity, ask yourself, “Will a judge or jury think that we gave this employee a full and fair opportunity to correct her behavior? Did she have notice that she would be terminated if her performance did not improve?” Unless you can answer yes to these questions, consider delaying the termination until you can.