Spitz, The Employee’s Law Firm

Call The Right Attorney™

No Fee Guarantee

At Spitz, The Employee’s Law Firm, our attorneys constantly hear questions from potential clients asking how they could have been fired when they have received only excellent performance reviews and have no history of discipline at their jobs. Today, we are going to discuss how your good reviews and lack of discipline affect your wrongful termination case.

What does it mean to be an at-will employee?

Best Employment Lawyer Answer: In most states, including Ohio, North Carolina and Michigan, are “at-will” employment states. This means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason at all without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences. You do not even have to give two-weeks’ notice! (Best Law Read: What Does Employment At-Will Mean?; Can I Really Be Fired For No Reason As An At-Will Employee? I Need A Lawyer!; Do I Have To Give My Boss Two Weeks’ Notice?).

So, your employer can fire you despite your positive performance reviews and spotless disciplinary record. BUT, if you believe your employer fired you illegally (say for race/color, religion, gender/sex, LGBTQ+ status, national origin, age, disability, etc.), your positive performance reviews and clean disciplinary record could help show that your employer’s reason for firing you is actually pretext for discrimination and/or retaliation.

How do I prove pretext for Wrongful Termination?

Best Wrongful Termination Attorney Answer: In the employment law setting, pretext means that an employer’s reason given in justification of an adverse employment action taken against an employee is not the real reason for such action. (Best Law Read: Employment Discrimination Question: What Is Pretext?; How Do You Win A Wrongful Termination Claim?; What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?). Employees can prove pretext by showing that the employer’s reason for the adverse employment action (wrongful firing, demotion, cut in pay, etc.) (1) has no basis in fact, (2) did not actually motivate the employer to take the adverse action, or (3) was insufficient to warrant the adverse employment action. Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121 (6th Cir. 1998); Holbrook v. LexisNexis, 169 Ohio App.3d 345, 862 N.E.2d 892 (2nd Dist. 2006); Detzel v. Brush Wellman, Inc., 141 Ohio App.3d 474 (6th Dist. 2001).

What is an example of wrongful termination pretext?

Best Employees’ Rights Law Firm Answer: To illustrate this situation, we take a look at the recent case of Cowgill v. First Data Technologies, Inc., 41 F.4th 370 (4th Cir. 2022). On January 20, 2015, Terri Cowgill, a call center representative, submitted a request for intermittent leave pursuant to the Family and Medical Leave Act (“FMLA”) as a result of back pain she was experiencing from an automobile accident that occurred 15 days earlier. The written physician’s note Cowgill submitted to First Data stated: “reduced work schedule: 4 hour(s) per day; 3-5 days per week” and “1/20/15 to 2/20/15.” First Data approved this request but required Cowgill to call in to Human Resources whenever she needed to take time off work and that HR would designate the time off as allowed under the FMLA.

Cowgill proceeded to take her intermittent leave as needed. However, things took a turn for the worse when on February 11, 2015, Cowgill’s supervisor, Dawn Rowe, met with Cowgill and issued her a “Final Written Warning”. The warning stated that Cowgill had accumulated over 64 hours of unscheduled absences and advised that any additional unscheduled absence may result in the termination of her employment. One week later, Cowgill met with HR personnel, Annette Wood, and told Wood that Rowe was harassing her and threatening her job because those 64 hours of “unscheduled absences” were actually her approved intermittent FMLA call offs. Wood withdrew the final written warning, but also told Cowgill that Wood needed to do what she had to do to “protect” her own job.  On August 4, 2015, after listening to a recording of a call that Cowgill received on July 10, 2015, Rowe and Cowgill met again. At the beginning of the meeting, Rowe brought up Cowgill’s pending FMLA recertification. When Cowgill told Rowe that she needed the accommodation request recertified, Rowe began discussing the July 10 call. Rowe had concluded that Cowgill engaged in call avoidance by failing to demonstrate restraint and courtesy with the caller and terminating the call abruptly. Rowe informed Cowgill that she was being placed on a 90-day improvement plan and informed Cowgill that further instances of call avoidance or unprofessionalism may result in further corrective action, including termination. Approximately one month later, on September 9, a customer submitted a negative survey following a call with Cowgill, noting that she prematurely disconnected the call. The parties dispute what happened during the call, but First Data concluded that the September call constituted a second act of call avoidance in violation of Cowgill’s improvement plan and fired Cowgill on September 15, 2015. Prior to the final written warning and two alleged instances of call avoidance, Cowgill had only had one minor disciplinary issue in the 11 years she worked for First Data and she regularly received the highest possible scores in her performance reviews.

Following her termination, Cowgill filed a lawsuit alleging claims of disability discrimination pursuant to the Americans with Disabilities Act (“ADA”), failure to accommodate under the ADA, and retaliation pursuant to the ADA and FMLA. First Data filed motions to dismiss Cowgill’s claims, which the district court granted. Cowgill appealed her claims to the United States Court of Appeals for the Fourth Circuit.

What is an ADA failure to accommodate claim?

Best Disability Discrimination Lawyer Answer: The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). One form of discrimination is failing to make “reasonable accommodations” for a disabled employee’s “known physical or mental limitations,” unless the employer “can demonstrate that the accommodation would impose an undue hardship” on its business. Id. § 12112(b)(5)(A). To survive summary judgment on such a claim under the ADA, an employee must show (i) she was disabled, (ii) the employer had notice of her disability, (iii) she could perform the essential functions of her position with a reasonable accommodation, and (iv) the employer refused to make such accommodation. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).

In her briefs, Cowgill argued that she requested a “reduced schedule” that allowed her to pick which days and which hours she actually wanted to work and just show up for those days and hours. However, based on a variety of evidence, the court found that Cowgill never actually made this request, but had just provided her physician’s note, and dismissed her failure to accommodate claim.

How do you prove disability discrimination at work under the ADA?

Best ADA Attorney Answer: To establish a case of disability discrimination, an employee must show (1) she was disabled, (2) she suffered an adverse employment action, (3) she was fulfilling her employer’s legitimate expectations or was otherwise qualified to perform the job, and (4) the circumstances raise a reasonable inference of unlawful discrimination. Rohan v. Networks Presentations LLC, 375 F.3d 266, 272 n.9 (4th Cir. 2004). To satisfy the third element, an employee need not “show that [s]he was a perfect or model employee. Rather, an employee must show only that [s]he was qualified for the job and that [s]he was meeting [her] employer’s legitimate expectations.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019).

If the employee makes this showing, “the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Lettieri v. Equant, 478 F.3d 640, 646 (4th Cir. 2007). If the employer does so, the burden then shifts back to the plaintiff to show that the employer’s explanation was “actually a pretext for discrimination.” Id.

How do good reviews and lack of a disciplinary history help prove pretext?

Best Employment Lawyer Answer: In Cowgill,  the United States Court of Appeals for the Fourth Circuit reasoned that if an employer genuinely believed that one of its employees was performing poorly on metrics the employer perceived as important (as First Data claimed), it seemed unlikely that they would rate the employee’s performance highly. Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 650 (4th Cir. 2021). Similarly, the Fourth Circuit held that Cowgill routinely received above-average performance reviews and had a minimal history of discipline. For these reasons, the Fourth Circuit held that there was a genuine dispute as to whether Cowgill met First Data’s legitimate expectations that must be decided by a jury. The court also found a genuine dispute of fact with regard to the fourth element of a disability discrimination claim. To satisfy this element, a plaintiff must show that the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination. Rohan, 375 F.3d at 272 n.9.

Cowgill disclosed her disability on January 20, 2015, and—exactly three weeks later—on February 11, First Data placed Cowgill on an improvement plan after she used the FMLA leave granted to her. The fact that First Data eventually withdrew the final written warning did not erase the mark of discriminatory motive. Similarly, in August, Rowe placed Cowgill on an improvement plan immediately after Cowgill confirmed that she was requesting recertification of FMLA leave. The extremely short time gap between these two events raised a strong discriminatory inference in the court’s eyes. Moreover, during the meeting in which Wood withdrew the January 2015 final written warning, Wood told Cowgill that she needed to “protect” her job. The court concluded that a reasonable factfinder could find that this statement revealed a discriminatory motive because it suggested that Cowgill’s job would remain unprotected if she allowed her disability to get in the way of her work performance.

Taken together, the court found this evidence to be sufficient to create a jury question regarding the causation elements of Cowgill’s disability discrimination claim.

Why is it important to get help from an employment lawyer right away?

Best Work Rights Law Firm Answer: If you remember, Cowgill also had a claim for retaliation in violation of the ADA. Unfortunately, the court dismissed this claim as well because Cowgill did not check the retaliation box on her charge form, and the included narrative explaining her charge made no mention of retaliation. As a result, Cowgill lost what may have been her easiest claim to prove. (Best Law Read: Don’t File With The EEOC On Your Own;  It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge).

Regardless, Cowgill’s disability discrimination claim survived, and she will have the opportunity to plead her case to a jury in large part because her positive performance reviews and solid disciplinary record showed First Data’s explanation for her termination to be starkly opposed to her significant history of success within the company.

How do I know if I have wrongful termination claim?

Best Employment Lawyer Answer: Every case is different. You need an attorney that is well versed in employment disputes and has a history of fighting employers in court to figure out what possible claims you may have. Employment discrimination, retaliation, and wrongful termination cases are very complex. There is no reason to attempt to figure out your case on your own. If you are searching “I need a lawyer race, national origin, gender, age, religion or disability discrimination issues on your own, you should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call Spitz, The Employee’s Law Firm’s dedicated employees’ rights lawyers in Ohio, Michigan, and North Carolina to get help now.

Disclaimer:

This employment discrimination and wrongful termination law website is an advertisement. The employment law materials available at the top of this page and at this employment attorney website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I find the best attorney near me to sue the company I work for because of disability discrimination?”, “What can I do if my manager fired me today after I requested FMLA leave,” “I was discriminated against because of my medical condition,” or “I was wrongfully fired in retaliation for reporting ADA violations to HR”, it would be best for you to contact experienced attorneys to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.