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A recent Tenth Circuit decision reinforces the importance of keeping employee policy violations well documented. In Litzsinger v. Adams Cty. Coroner's Off., 25 F.4th 1280 (10th Cir. 2022), a medicolegal death investigator with a history of anxiety and depression sued the coroner's office for retaliation under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) after she was terminated soon after the employee returned from FMLA leave.

Leading up to termination, the employee had been written up for failing to comply with various employer policies, including falling asleep during shifts, not completing tasks on time, and excessive internet use for personal reasons. The week the employer had planned to meet to discuss these performance issues with the employee, she suffered a panic attack and subsequently took a short FMLA leave to address her health issues. Upon returning, the supervisor placed the employee on probation, a condition of which was to refrain from using the internet at work for personal reasons. In the two weeks after she was put on probation, the employee continued utilizing the internet for personal reasons and was terminated for violating the terms of her probation.

The Tenth Circuit affirmed the trial court's dismissal of the case, stating that no reasonable juror could find the employer's reason for termination pretextual. Despite evidence that the employer expressed frustration and skepticism for the employee's reason for taking FMLA leave, the court noted that the employer's records for termination were consistent and showed the reasons for termination were non-discriminatory. The court also pointed out that the employer's additional reasons for termination once the litigation started did not suggest pretext because the initial reason for termination did not change. Rather, adding justifications bolstered, rather than discredited, the originally stated reason for the employee's termination. Litzsinger fortifies the importance of enforcing your employment policies and documenting violations of those policies in the case of terminations.

Employers Council can help navigate sticky termination situations. Contact us for more information.