Timing of Discharge Overcome by Discipline Documentation

By Scott M. Wich November 15, 2017

​Proper documentation of HR actions is a good practice, often required by company policy and, as recently highlighted in a Connecticut federal court decision, sometimes the key to defeating a claim of unlawful retaliation. At times, it is impractical to hold off on a termination decision that is made soon after an activity protected by law. However, good documentation of the basis for and explanation of the decision can eliminate liability.

The plaintiff in this case worked as a recreational therapist for a company that provides management services to health care facilities. Beginning in June 2013, the employee received a series of disciplinary notices. The first warned her that "Further problems of any kind may lead to further disciplinary action up to and including termination of employment."

In August 2013, the plaintiff submitted Family and Medical Leave Act (FMLA) paperwork to the company and, starting in October 2013, took intermittent leave for a medical condition. She returned to work in December 2013. She was disciplined further for an argument with a co-worker and, again, was warned that "another incident with anything or anyone else could lead to termination."

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

In March 2014, the company conducted an investigation into the plaintiff's work records and concluded that she had fabricated the work performed for patients. As a result, the company suspended her pending investigation and terminated her shortly thereafter.

The plaintiff sued the company, alleging, among other things, that she was discharged in retaliation for claiming FMLA leave a mere four months earlier. On a motion for summary judgment, the court dismissed the claim. It found that the plaintiff was unable to prove a claim of unlawful FMLA retaliation.

The court first noted that temporal proximity of a discharge to protected activity can, but does not necessarily, support an inference of an unlawful motivation. A period of four months could, depending on the attendant circumstances, support a claim. However, the court also held that an intervening event that caused the termination may defeat such an inference.

In the matter at hand, the court found that the plaintiff was twice disciplined between her December 2013 return to work and March 2014 discharge. Given the intervening disciplines, the court concluded, no inference of retaliatory intent could be drawn from the timing of the discharge decision.

The court also found that the company had articulated a legitimate, nondiscriminatory reason for discharging the plaintiff—poor performance, insubordination and violations of the company's code of conduct. The plaintiff, in turn, failed to show that such reasons were a pretext to mask unlawful retaliation. The court found that the plaintiff had failed to sufficiently contradict the facts presented by the company in support of its conclusions of terminable conduct. Moreover, it noted that, in some instances, the plaintiff had admitted to the facts underlying the disciplinary actions.

The court concluded that the documentation of the various disciplines made clear that future misconduct could lead to her termination. Further, in response to the plaintiff's argument that her termination letter did not include all of the reasons for termination articulated during the litigation, the court found that, absent a policy to the contrary, an employer is not obligated to specifically state each and every reason for discharge as long as the letter establishes at least one legitimate, nondiscriminatory reason.

Skibitcky v. Healthbridge Management LLC, D. Conn., 3:16-cv-00052 (Sept. 18, 2017).

Professional Pointer: Consistent and thorough documentation practices are essential to defending employment decisions that may be challenged months or years later. A key point is ensuring that the information included in such documentation is accurate and appropriate, keeping in mind that such documents may be subject to disclosure in the course of a lawsuit.

Scott M. Wich is an attorney with Clifton Budd & DeMaria, LLP in New York City.


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