HR Lessons from the Comey Termination

By Mark J. Swerdlin - Shawe & Rosenthal LLP

May 18, 2017

Whether you live in a blue state, red state, or just in the state of denial, you surely have heard by now about President Trump’s firing of FBI Director James Comey.  And whether you think the termination was “way overdue” or “bat sh–  crazy,” we can all probably agree that it was not exactly HR 101 when it comes to best practices for handling an employee termination.  So, what are some of the lessons we can draw from this situation?

• You should terminate an employee as close in time as possible to the events that led to the termination decision in the first place.  We have all heard the horror stories of an employer finally deciding to pull the trigger on a termination but delaying it for a day or two, or even a week or two, for whatever reason.  Then, before it can tell the employee she’s fired, the employee comes to work wearing a Union button, or the employee slips and falls on the job, or the employee alleges race discrimination or that she’s paid less than male co-workers doing the same job.  What was once a perfectly defensible termination now looks like retaliation.  Moreover, a third party (like a jury or the EEOC) called upon to rule upon the bona fides of the termination, may find the passage of time from the supposedly terminable event to the actual timing to be inherently suspicious, making the fact finder less likely to credit your reasoning for the discharge.  In the Comey case, some have questioned the stated rationale for the discharge of how Comey handled the Clinton email investigation given the significant passage of time from those events.  Those persons have speculated that if that was the real reason, why didn’t President Trump fire Comey shortly after inauguration.

• Be consistent with your rationale for the termination.  I always counsel my clients that if you give one reason for the discharge at an unemployment compensation hearing, another during the EEOC proceedings, and yet a third rationale at trial, it is likely that a fact finder will view the shifting rationales with suspicion.  As we all know, the White House originally pointed to Deputy Attorney General Rod Rosenstein’s memo finding fault with the email investigation, but President Trump subsequently stated that he would have fired Comey regardless of the memo. This change in explanation makes some people question what the “real” reason was for the decision.  In an employment case, a plaintiff could use such shifting rationales to argue that the real reason must have been his age or his race or the fact that he had complained about discriminatory treatment.

• Treating the terminated employee with respect and courtesy may help to avoid litigation and liability.  Believe me; we share your pain of dealing with difficult employees.  Oftentimes when you get to the point of termination, you have no more patience with the soon to be former employee.  However, I have seen very little good come of exhibiting disregard for the employee on the way out.  Our firm litigated a case years ago where our client had terminated the employee on Christmas Eve for what it believed were very good and legitimate reasons.  You better believe that plaintiff’s counsel started every question with, “So tell me, when the Company fired you on Christmas Eve….”  That intro was used when the question was “what year did you start working for the Company?”  So, delivering a termination letter to the employee’s office when he’s across the country and having him learn of his termination on TV may not win you any points at trial.

• Seek counsel early on to avoid surprises. From all accounts, the Trump team, believing that the Democrats would be glad that Comey finally got what he deserved, was shocked when Democrats reacted negatively to the Comey firing.  Particularly with terminations of high level officials or of individuals who could potentially raise management issues, having experienced counsel walk you through the termination strategy may be of great value.  Outside counsel can help you hone in on the legitimate nondiscriminatory reasons for the termination, tell a consistent story in whatever forum(s) you may need to explain your actions, and avoid missteps in communicating the decision to the employee that might goad him into filing legal action.  After all, you never know if the person you are about to fire may have a “smoking gun” memo tucked away somewhere.