The less said the better when firing an employee

by on May 29, 2009 · 0 Comment POSTED IN: HR Info Center

This company said too much, and it cost them in court

If you or a manager at your company are firing an employee for performance reasons, you’d better script your message very carefully in advance. The key: raise only the performance issues that resulted in firing the employee. Referring to other issues, even related ones that would seem to support your decision, open you up to the accusation that you had “mixed motives.”

Here’s an example where an open-and-shut case got derailed because, simply put, somebody said too much when it came to firing an employee.


Alicia Fabela worked as a secretary for a school district. For her first several years there, Fabela earned good performance ratings and got along well with her bosses. In 1991 she was transferred from the school district headquarters to an elementary school. Her problems there began right away.

She didn’t get along with the principal, Arturo Olivas. A few months after Fabela started working at the school, Olivas gave her a poor performance evaluation and recommended firing the employee.

Fabela responded by suing the district for sex harassment. Her claim: Olivas had made inappropriate sexual advances and sexist remarks to her. She said that when she complained, he retaliated by giving her the poor performance review.

Her case went to court, but the court tossed it out. Fabela hadn’t presented any credible evidence that Olivas had sexually harassed her, said the judge. What’s more, her own witnesses testified that Olivas was unhappy with Fabela’s performance, thus justifying the reasons for firing that employee.


Fabela lost her lawsuit and the district transferred her to another school, where she received good reviews and got along well with others.

After five years, a new principal – Jo Reinhart – arrived at the school. And Fabela’s problems began anew. Reinhart made frequent complaints about Fabela’s performance. One day when Reinhart instructed Fabela to pick up some office forms at a printer across town. Fabela refused. So Reinhart recommended firing the employee immediately.

A couple days later, a special administrative hearing was called. Present were Fabela and her attorney, Reinhart, and three school district administrators, including Assistant Superintendent Tom Marcee, the man who had approved Fabela’s transfer after her failed lawsuit a few years earlier. At the hearing, Reinhart showed the administrators a detailed record of Fabela’s many infractions that provoked firing the employee.

During the session, Assistant Superintendent Marcee, who remembered Fabela’s earlier lawsuit, made a blunder: When another administrator asked why Reinhart wanted Fabela fired, Marcee jumped in and volunteered that Fabela had been a “problem employee” ever since filing her sex discrimination lawsuit years earlier.

That’s all it took to seal the district’s fate. Despite plenty of evidence to substantiate a legitimate dismissal, and although Fabela’s sex discrimination lawsuit had been deemed meritless several years earlier, the mere mention of it at a meeting connected with her dismissal paved the way for a mixed motive verdict. Fabela sued the district again. This time she won her claim of reprisal against her employer-all because of an errant comment by someone who should have known better.

Are your managers trained to say only what’s necessary when firing an employee? They should be. Do they know they should never offer any more information than is required? This case shows what can happen when they do.

Source: Fabela v. Socorro Independent School District, U.S. Court of Appeals, 5th Circuit, 02-50138, 4/24/03. HR 2.2

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