Timing of Personnel Decisions is Important

December 6, 2010, 11:10 AM

Employers are often faced with tough personnel decisions. Those decisions become even more difficult when problematic employees assert rights under leave or discrimination laws. Once an employee has asserted such rights, any subsequent disciplinary action may appear to be in violation of those rights. That is why employers must take legitimate action in a timely manner, avoiding subsequent claims or complaints by problematic employees. Similarly, once a problematic employee has asserted such rights, employers must carefully consider the timing of their personnel actions.

The Equal Employment Opportunity Commission (EEOC) recently filed suit on behalf of an employee who was terminated by clothing retailer, The Gap. The EEOCs lawsuit (EEOC v. The Gap, Inc., Case No. 2:10cv14559) filed in U.S. District Court for the Eastern District of Michigan, alleges that Wayne Cook worked successfully for The Gap as a store manager for nearly three years. In December 2007, Cook took leave to address problems caused by his glomerolonephritis, a kidney disorder. In January 2008, he provided his supervisor with a detailed description of his medical conditions and the problems he was experiencing. In February, Cook returned to work and was fired on the spot, according to the EEOC, allegedly for having tolerated the violation of a work rule prior to taking a leave of absence.

During the EEOC investigation, The Gap defended its decision to terminate Cook on the ground that Cook's actions prior to his leave justified his termination. The EEOC rejected this position, finding that Cook's termination violated the Americans with Disabilities Act. The agency's pending suit seeks to recover monetary compensation for Cook in the form of back pay and compensatory damages for emotional distress, as well as punitive damages.

Cases like this highlight the importance of timing. If The Gap had terminated Cook at the time of the alleged infraction, as opposed to after his leave, perhaps the lawsuit could have been avoided. --David J. Sullivan