Fired Rubber StampWhy was that employee fired? If you are responding to a charge of discrimination filed with the EEOC or the NEOC, you had best make sure your reason for termination is consistent with all other written explanations of the employee’s termination. Otherwise, you could be looking at a trial instead of dismissal.

A recent case out of the Court of Appeals brings home this point. In that case, the employer initially claimed that the employee was terminated because she was a poor performer and failed to improve her performance after several reprimands. Then, when responding to the ex-employee’s charge of discrimination, a/k/a the employer’s Position Statement, the employer indicated that a change in the company’s focus made the plaintiff’s position obsolete and hardly mentioned the plaintiff’s poor performance.

Although both of these factors could have played a role in the employer’s decision to terminate the employee, the Court of Appeals found that the employer provided inconsistent and contradictory explanations for the ex-employee’s termination. The employer’s inconsistent explanation, coupled with the ex-employee’s claim that she complained about gender discrimination, were enough to create an issues of fact as to whether the plaintiff was terminated in retaliation for complaining about gender discrimination.

Because the court found that there was an issue of fact as to the employer’s reason for terminating the plaintiff, the case will proceed to trial. Or it will settle. Either way, the employer faces a substantial hurdle to get the case resolved.

Lesson learned: You will be well served to have a sound basis for any employment decision and that basis must be consistently shared with the regulatory entities when you are asked why the ex-employee was terminated.