Employers have long been on notice of the importance of well-crafted employment policies to avoiding risk associated with employee terminations and other personnel actions. However, a recent appellate decision from the United States Court of Appeals for the Fourth Circuit further reinforces the importance of consistent application of those policies in avoiding claims of pretext in employment litigation.
In Wannamaker-Amos v. Purem Novi, Inc, a former employee brought suit in federal court in South Carolina alleging discrimination based on race and sex in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and 42 U.S.C. Section 1981 (“Section 1981”). The plaintiff alleged that her termination was motivated by the racial and sex-based animus of a supervisor, and pointed to her record of positive performance evaluations and no disciplinary actions in support of her position. The employer maintained that the plaintiff was terminated based on legitimate, non-discriminatory performance reasons, including incidents of poor performance that occurred just prior to the plaintiff’s discharge. The district court granted summary judgment for the employer and dismissed the case, finding that the plaintiff had failed to present sufficient evidence that the reasons for termination proffered by the employer were pretext for unlawful discrimination. On appeal, the Fourth Circuit disagreed and remanded the case to the district court for trial.
In reversing the district court’s grant of summary judgment for the employer, the Fourth Circuit pointed to the employer’s written progressive discipline policy, which provided that an employee could only be terminated without prior counseling or disciplinary action in cases involving serious misconduct. The alleged discriminating supervisor admitted that he had not followed the employer’s progressive discipline policy, and had not counseled the employee or provided an opportunity to improve her performance prior to terminating her employment. The Fourth Circuit found this admitted failure to adhere to company policy, combined with shifting justifications for the termination and a lack of documentation supporting the alleged performance deficiencies, created a genuine issue of material fact as to whether the employer’s reasons for the discharge were pretextual.
This case provides an important reminder that, even where a workforce is employed at-will, it is essential that employment policies be thoughtfully drafted and implemented through company-wide distribution and training in order to ensure consistent application and to best avoid claims of disparate treatment and pretext in personnel decisions. Involving employment counsel in the policy drafting and implementation process can help manage risk and avoid liability down the road.
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