TERMINATION: Not a ‘team player’… or sex discrimination?

by McAfee & Taft

not-team-player-or-sex-discriminationFrom time to time, employers discharge employees because they’re “not a good fit” or “not a team player.” While these may be perfectly good reasons for ending someone’s employment, be aware that in some situations courts or jurors may believe the employer is using that explanation as a way to conceal a discriminatory motive. That’s what happened when Synerlink Corporation discharged Stacey Potter, and she complained of sex discrimination.

Female territory manager hired

Synerlink sold electrical products to businesses in the electrical utility market. Until early 2004, all Synerlink’s territory managers were male. That changed, when President Jim Tarpley hired Potter over three or four male candidates for a vacant territory manager position.

Potter moved to Tulsa and began working with Synerlink’s Oklahoma and Texas Panhandle accounts. She was supervised by Regional Vice President Earl Reynolds, but worked closely with Tarpley. When she was first hired, Potter told Tarpley she knew that she would have to perform better than a man to be successful in the industry and with the company’s “good ol’ boys” customer base.

By all accounts, Potter performed admirably. She was praised by co-workers as well as by customers. At the December 2006 awards banquet, Potter “swept” all the awards, receiving numerous plaques and trophies. She received the “Mrs. Gross Profit” Award,” which had previously been known as the “Mr. Gross Profit Award.” Potter was praised by Reynolds and Tarpley for her accomplishments during a number of territory manager meetings

Synerlink created a new territory and hired a new territory manager, Gary Dutton. Potter resisted requests by Tarpley and Reynolds that she transfer some of her smaller accounts on the Oklahoma border to Dutton to assist his start-up. When Dutton’s territory later lost a significant client, Potter was asked to consider transferring some of her accounts to Dutton. Once again, Potter resisted, criticizing Synerlink’s original decision to create the new territory for Dutton. Potter also criticized the company’s change in policy, which permitted Synerlink’s sales representatives to work directly with clients without any oversight by Potter or other territory managers.

Heated discussions lead to firing

In June 2007, Potter sent several emails to Tarpley. The emails covered changes she advocated on how bonus and commission splits should work. She repeated her objection to Synerlink’s requests that she share or give up accounts to Dutton. According to Tarpley, these emails were “the last straw,” and he fired Potter for an “ongoing failure to work as a team player, an issue which culminated in a series of combative emails” from Potter to Tarpley.

Potter’s lawsuit and Tarpley’s notes

Potter filed a lawsuit in Tulsa’s federal court against Synerlink complaining that she had been fired because she was a woman, in violation of Title VII of the Civil Rights Act of 1964, and a wrongful discharge claim then recognized by Oklahoma law. During the lawsuit, Synerlink produced handwritten notes of nine meetings Tarpley said he held with Potter. The notes described ongoing discussions by Tarpley with Potter about her attitude, selfishness and unwillingness to act as a “team player.” Potter denied the meetings had occurred and contended Tarpley never talked to her about these criticisms. According to Tarpley, the notes were originals that he took at the time of his meetings with Potter or shortly after each meeting. However, a document expert later concluded the notes were not originals. When confronted, Tarpley admitted that he had copied the notes from the originals, and said he destroyed the original documents.

How do you prove sex discrimination circumstantially?

Like many discrimination cases, Potter was relying upon circumstantial evidence to demonstrate she was discriminated against because she was a woman. Because she exceeded sales expectations as a territory manager, Synerlink was required to offer evidence that it fired Potter for legitimate, nondiscriminatory reasons. According to Tarpley, his decision to discharge Potter was based upon her failure to behave like a “team player.” This can be a legitimate, nondiscriminatory reason for termination. However, if Potter could offer evidence that this explanation by Synerlink was simply an attempt to hide the fact that it was discriminating against her because she was a female, then it would be up to a jury to decide the issue.

Potter argued there were at least two reasons a jury should decide whether she was discriminated against. First, Potter claimed that she was treated differently than other male territory managers. She offered at least two instances where male territory managers had challenged Synerlink’s management or “butted heads” with supervisors over territory changes. Unlike Potter, those male territory managers had not been fired or suffered any negative employment actions. Second, Synerlink’s description of a legitimate, nondiscriminatory reason for termination rested primarily upon Tarpley’s explanations, and Tarpley was the decision maker. Potter argued that Tarpley’s misrepresentations about his notes and his counseling sessions with her undermined his credibility. The Court of Appeals for the Tenth Circuit agreed with Potter, and now a Tulsa jury will decide whether Synerlink’s decision to fire Potter was based upon her sex or because she was not a “team player.”

Points to Remember

If you take employment action based upon an individual’s inability to “fit in” or because they are not a ‘team player,” be sure to go further. Identify how these problems translate into specific operation or performance difficulties. When making termination or discharge decisions, take the time to consider whether similar situations have arisen in the past with other employees, and what actions were taken with those individuals. You don’t want to be accused of acting more harshly or inconsistently. Finally, it’s always a good idea to keep records of what has transpired in meetings with an employee addressing their job performance. The best practice is to provide the employee with a copy of the documentation. This reduces miscommunications or misunderstandings associated with the meetings, and you cannot be accused of manufacturing documentation, after the fact.

  • Potter v. Synerlink Corp., Case Nos.: 11-5092 and 12-5117 (10th Cir. 4/21/14)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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