Although many employers use progressive discipline policies, I am typically not a big fan. In theory progressive discipline seems like a good idea: it allows an employee to learn from their mistakes. It puts the employee on notice that further discipline is going to have more serious consequences. It is difficult for an employee who has gone through the steps to claim surprise when the termination arrives.
On the other hand, progressive discipline limits an employer’s flexibility. Sometimes it is clear an employee isn’t working out, but the company feels bound to go through the steps before terminating. In other cases, the circumstances may warrant giving an employee more chances that the policy allows. In those situations, an employee may be terminated simply because they are on the last step, even though the company would rather keep the employee.
Of course, progressive discipline policies almost always have an “out.” That is, the company reserves the right to skip one or more steps in the process, or not use it at all. But, if the policy has an “out” which gives managers virtually unlimited discretion to avoid it, what is the point of having the policy? Plus, the more discretion allow in applying the discipline policy, the greater the probability for inconsistent application.
Although I remain a skeptic, I have to admit that sometimes a progressive discipline might be decisive in defeating a discrimination claim, like it was in a recent case from the Eighth Circuit. The plaintiff in Lindeman v. St. Luke’s Hospital of Kansas City worked for the hospital for eight, mostly uneventful years. But, between January and April 2014, he quickly progressed through the hospital’s progressive discipline, ultimately ending with his termination.
St. Luke’s progressive discipline policy was typical of most: a first offense resulted in a verbal warning; second offense a written warning; third, a suspension or second written warning, and fourth termination.
The plaintiff received a verbal warning on January 1, 2014 when he became argumentative when receiving coaching from a supervisor. Later in January he received a written warning for failing to comply with the hospital’s timecard and call-in procedures. In February, the plaintiff was suspended when he failed to call in prior to missing a scheduled shift. Finally, in April 2014, plaintiff was terminated when he violated the hospital’s confidentiality policies by mentioning the name of a patient to others inside and outside the hospital.
Plaintiff alleged his termination was motivated by several disabilities-obsessive compulsive disorder, attention deficit disorder, bi-polar disorder, and a number of physical limitations. Plaintiff relied upon two pieces of evidence to prove the hospital’s stated reason for the termination was pretext for disability discrimination. First, he claimed other employees disclosed patient names and were not disciplined. Second, his eight year history of strong performance reviews followed by a quick progression through the discipline policy after he was assigned to new supervisors.
In many cases, evidence that similar offenses of other employees were treated more leniently generates a factual dispute sufficient to defeat summary judgment. In this case, however, the hospital persuaded the court the other employees were not adequate comparators because they were not on the final stage of progressive discipline at the time of their offenses. The court also found other reasons the comparators were not adequate, but the different places the other employees fell on the progressive discipline scale was a decisive fact.
The key takeaway: employees at different stages of the progressive discipline policy can be treated differently, even for a similar offense. So long as the evidence shows the employer consistently applies progressive discipline to all employees, it may provide the ticket to defeating a claim of discrimination.