The concept of progressive discipline refers to a series of corrective steps a troubled employee must follow to correct employment-related shortcomings. If an employer stumbles when administering these steps, however, its legal arguments may fall flat in court. Case in point: Soto-Feliciano v. Villa Cofresi Hotels, Inc.

Suspension and termination

The plaintiff worked for the defendant for seven years and was eventually promoted to head chef before he was suspended and terminated. The employer asserted that the plaintiff was terminated because he:

•  Used profanity at work,
•  Made disrespectful comments to his boss, and
•  Arrived late often.

The plaintiff claimed that the general manager of HR told him, “You are no longer capable to work at the line because you are old,” and she was going to hire a new head chef. He also alleged that supervisors made comments such as, “Fool, you are too old.”

The plaintiff filed claims against his employer under the Age Discrimination in Employment Act (ADEA) for age discrimination and retaliation. The employer moved for summary judgment and the trial court granted the motion dismissing all claims. The employee appealed.

Significant gaps

On that appeal, the employer claimed that the plaintiff had been verbally warned about being late to work and using profanity in the kitchen. He was suspended for a variety of reasons — including insubordination and uttering a threatening remark to a co-worker — detailed in a letter the employer sent to the plaintiff.

The plaintiff argued that he wasn’t advised of any issues before the suspension letter. Indeed, the record showed that complaints about his conduct were never documented in writing or placed in his file. Also, there was a meeting with hotel management four days before he was suspended and none of the incidents involving the plaintiff were raised there.

The U.S. Court of Appeals for the First Circuit agreed, finding that the employer’s records revealed “significant gaps and inconsistencies.” The employer claimed the plaintiff was terminated based on poor performance and conduct, but there were no records in the plaintiff’s file indicating so. The employer had a progressive discipline policy in place stating that verbal warnings were to be followed by written ones. Yet the plaintiff was suspended for one threat and two incidents of insubordination without first receiving any written warnings.

In short, the employer had failed to follow its own progressive discipline policy requiring a step-by-step approach from verbal warnings to more severe discipline for documented misconduct. And, the appeals court held, the company’s failure to abide by its own policy raised doubts about its true reasons for firing the plaintiff.

Retaliation claims

In addition, the plaintiff alleged that he had informed hotel management about his age discrimination concerns on a number of occasions before his suspension. Doing so provided evidence of “temporal proximity” between his complaints and his termination.

The manager who’d signed the suspension letter had questioned the plaintiff about his visit to the Department of Labor days before he received said letter. This further supported temporal proximity. Therefore, there were issues of fact as to his retaliation claim. Ultimately, the appeals court reversed the trial court’s decision and remanded the case to the lower court for reconsideration.

Great risk

Clearly, it’s important for employers to have progressive discipline procedures in place. But, as this case shows, such procedures are helpful only if you train your supervisors to follow the process diligently. If they enforce disciplinary procedures inconsistently — or not at all — you’ll face legal risk in the event of an employment discrimination claim. 

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