The problem for the law firm, however, is that it allegedly discovered those performance issues months before the termination and sat on them until the employee was ready to return from her maternity leave.
That timing was enough for the court to deny the law firm's motion for summary judgment on her pregnancy discrimination claim.
"Had the Law Firm truly wanted to fire Harrigan because of this misstep, the court wrote, "there would either be a closer temporal relationship between the misstep and Harrigan's termination or at least some sort of formal review taken shortly after it occurred. But there is not." The Court continued, "In light of this peculiar timing and the absence of any recorded issues with Harrigan's performance prior to her termination date, there is certainly a question as to whether the Law Firm's stated reasons for firing Harrigan were pretextual. Accordingly, this issue should go to the jury."
When you discover an employee has erred, do something about it. Not every offense is a fireable one (although some certainly are), but all require documentation and some level of discussion with or discipline of the employee. If you do nothing, however, and then later try to use that same misconduct as your reason for firing the employee, good luck convincing a judge that your inaction is any other than evidence of pretext.