Howard Cohen managed various restaurants from 1998 through 2006, and again from 2007 until his termination in August 2009. During his second tenure with the restaurant company, his performance was less than stellar; he received various disciplinary warnings, write-ups, and suspensions, and two consecutive negative annual reviews. The restaurant waited to terminate Cohen, though, until the day after he advised of his need for back surgery. Based on that fact alone, and ignoring management’s internal discussions about terminating Cohen before he communicated his need for surgery, the trial court denied the employer’s motion for summary judgment:
Defendants have undoubtedly presented a wealth of evidence justifying their termination of Plaintiff. Nonetheless, their failure to fire Plaintiff, after years of poor performance reviews, until the morning after he requested leave for his back condition raises a sufficient question as to Defendants’ alleged discriminatory motive to render summary judgment inappropriate.
Don’t make the same mistake. Look for the sweet spot before firing a poor performer.
- Fire after you’ve provided the employee sufficient and reasonable warnings and opportunities to improve. Firing too early could lead a judge or jury to conclude that the termination was an ambush, and punish accordingly.
- Fire before the employee engages in some protected activity. Firing too late—as in the Cohen case—could lead a judge or jury to conclude that something other than poor performance motivated the decision. The last thing you want in a discrimination or retaliation case is a search for an explanation other than your proffered legitimate non-discriminatory reason.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.