If you want to avoid potential liability from a former employee, remember a key maxim: Stick to your story about why you made the employment decision. If an employer shifts rationales for its decision or tries to pile on by adding new reasons after the fact, it will likely have to explain itself to a jury or pay to settle the case. A recent decision from a federal court in Tennessee, Rikita Bonner-Gibson v. Genesis Engineering Group, illustrates this principle.

Avoiding Pretext Is the Name of the Game

The issue boils down to whether the employer’s reason for termination was the true reason or a pretextual one to disguise an illegal motive. If facts suggest that an employer’s reason may be pretextual (because it has changed over time), then the case will likely go to a jury.

In this case, Genesis Engineering claimed it terminated Bonner-Gibson after she returned from maternity leave because she “unilaterally alter[ed] her work schedule and . . . respond[ed] to a supervisor in an insubordinate fashion.” Both reasons are unrelated to Bonner-Gibson’s pregnancy or leave. Bonner-Gibson, however, argued that the reason was a pretext and she was really terminated because of her pregnancy and in retaliation for complaining about her treatment during her pregnancy.

Reviewing the fact in the light most favorable to Bonner-Gibson, the court concluded Genesis Engineering had not been consistent in its rationale for terminating her. The “most notable” example came from an inconsistent statement during an unemployment hearing. During that hearing, the company’s HR representative testified that Bonner-Gibson was terminated because she forwarded a final written warning email she had received to family members. However, the HR representative did not have any personal knowledge of why Bonner-Gibson was terminated. She was speculating regarding the reasons why she was terminated based on her review of Bonner-Gibson’s personnel file. The forwarding of the email, however, was not one of the reasons for Bonner-Gibson’s termination. When Genesis Engineering abandoned this reason in litigation, the court opined that it called their entire decision-making process into doubt.

Don’t Pile On

In addition to shifting justifications, the court found that Genesis Engineering tried to “pile on” during the lawsuit to add additional reasons for terminating Bonner-Gibson that did not actually motivate its decision. Piling on of justifications for termination is also potentially evidence of pretext.

Genesis Engineering’s shifting rationales and piling-on tactics contributed to the court’s denying the motion for summary judgment on Bonner-Gibson’s pregnancy discrimination and retaliation claims. (The court granted summary judgment on other claims Bonner-Gibson did not contest.) The court held that Genesis Engineering’s shifting justifications and piling-on strategy helped create credibility determinations that only a jury could decide. Now, Genesis Engineering will either have to explain itself to a jury and seek a favorable verdict or pay a potentially costly settlement.

Key Takeaways

To avoid a similar plight, employers should remember the following takeaways:

• Stick to your story. Once you terminate an employee for a reason, that is the reason. Don’t try to shift your justification later for discharging the employee.
• Don’t pile on additional reasons after the fact. One true and documented reason for termination is better than five reasons that did not really motivate the termination.
• Make sure that employees who represent the employer at administrative proceedings, such as unemployment hearings or responding to EEOC charges, actually know why an employee was terminated. It is, of course, much easier to prevent mistakes on the front end than to try to clean them up later.