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Beware the Gap Between What’s Legal and What’s Believable – How Good Is Your Story?

Sometimes, asking “Can I fire this person?” is the wrong inquiry to begin with.  The better question may be “If I fire this person now, will my reasoning be believable to an outsider (especially a group of outsiders called a jury)?” 

Usually, the answer to the first question is “Yes – you can fire this person.”  But that answer does not help fully measure the employer’s risk - which involves taking a look at how else the story may be told.

recent decision by the U.S. District Court for the Northern District of Illinois, which let a former employee’s FMLA interference and retaliation claims go to trial, provides a good example.

In that case, the company’s version of circumstances was along these lines:

In April, it decided a reduction in force (RIF) was needed.  This employee was selected because she had a limited skill set, and because her skills did not match the group’s work needs. In late May, the employee communicated about her medical condition and her anticipated need for leave.  About a week later, the RIF was implemented, which included the employee.  

Pause for a moment right there - if you’ve ever been involved in a RIF, those reasons - limited skills or a poor match between skills and available work - probably sound familiar.  Those are valid reasons to include someone in a RIF.  Plus, being able to say the RIF decision was made before the company knew of the employee’s medical issues sounds like the company was on very solid ground (and the jury may still decide that way).  But there was clearly more to the story and another believable interpretation of the facts, so the court concluded that a jury should get to decide. 

One obvious issue is the timing – the employee was released just about a week after alerting the company to her medical issues.  Another issue seems to be that the company placed too much emphasis on the limited skill set.  Apparently, there was so much evidence about her lack of skills, it created the impression that the employee would have been (or at least should have been) fired anyway. Why is that a problem?  Because it was inconsistent with company policy, which said that people impacted by a RIF were eligible for rehire. Another issue came from some internal staffing analysis, which indicated that the group in question was actually understaffed - not overstaffed, and that the company had never done a RIF when its own staffing metrics indicated more personnel was needed.

All of that combined led the judge to conclude the RIF could reasonably be viewed as a cover-up for unlawful discrimination. 

This outsider’s take is that the company made such a big deal of performance concerns (limited skill set), that it was hard to believe the employee was still around.  And that is one reason why a RIF should not be used as a substitute for directly dealing with an employee’s performance issues. 

Finally, we circle back to where we started – including the importance of thinking about what other story can be told from the facts.  Don’t just rely on valid legal reasons for a termination without considering what other version of events might be believed.  Assessing what’s legal and what’s believable are both important.

© 2020 Foley & Lardner LLPNational Law Review, Volume IX, Number 287



About this Author

Dabney Ware, Foley Larnder, litigation lawyer, labor employment law, workplace
Of Counsel

Dabney Ware is of counsel and a litigation lawyer with Foley & Lardner LLP where she focuses her practice in the area of labor and employment law. Ms. Ware has extensive experience both in employment-related litigation and in counseling clients on all aspects of compliance with the myriad of federal, state, and local laws. She is a member of the firm's Labor & Employment Practice and Food & Beverage Industry Team.

Ms. Ware does significant counseling regarding wage and hour, harassment and discrimination, employee counseling and...