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Worth asking: Any unresolved issues with this employee before we fire?

Posted by Melissa Fleischer, Esq. on Oct 17th 2014

At many companies, the person who is terminating another isn’t necessarily the one making the decision. In cases like this, HR probably should get involved and make sure there are no outstanding issues that might need to be resolved during termination.

A messy case in Georgia resulted in multiple jury awards: $25,000 for state-law negligent hiring, $10,000 in punitive damages for state-law battery, and $46,000 for Title VII retaliation. An appeals court set aside all but the negligent hiring claims. Considering the costs of a jury trial and a federal appeal, it was an expensive and long legal battle.

Sympathetic hug turns nasty

A quick rundown: A female security guard said she gave a worker a sympathetic hug, but he soon groped her buttocks and breasts and continued to grab her even as she pulled away from him. She allegedly reported the incident to her supervisor, who was new to the job. She was terminated two days later by this same supervisor.

The company disputes many of those facts – saying the supervisor was only informing her to report to HR for a transfer to a new assignment, and that the supervisor had no firing power. Plus, the supervisor claimed she never reported the groping incident, so there was no possible retaliation.

The groper apparently had a bad prior history and the company lost on negligent hiring counts, and those awards weren’t appealed. The take-home is the value of thorough background checks prior to hiring.

Just not enough evidence

The jury believed the worker on the other issues, but it was reversed by the district court in what’s called a judgment as a matter of law: There wasn’t any affirmative evidence the supervisor had firing power or made the decision to fire her, or that anyone higher up who made a firing decision (if there was one) knew about the groping incident. Without those, the claims fail, and an appeals court affirmed.

A bigger issue for HR is why there was any dispute about reporting an incident of this severity. Any potentially adverse action will likely be seen as retaliation or punishment, and cause someone to seek out an attorney. Why did no one know? Why is there a dispute over whether someone is fired or told to report to HR for a transfer? Matters such as this should be clear to employees and supervisors.

Cite: Smith v. Metropolitan Security Services, Inc., No 12-12711, 11th Cir., 9/18/13.

Related webinar: Tips To Avoid Liability When Firing Employee