Fourteen Months of Paper and a Termination Request
For 13 years, Dana has been a Senior Accountant in a mid-sized city's finance department, rated 'meets standards' every year. Fourteen months ago a new division manager arrived. Since then Dana has received two 'needs improvement' evaluations and one written reprimand for missing a quarterly reconciliation deadline by nine days. The manager never placed Dana on a performance improvement plan, never issued interim counseling memos, and the position description has not been updated since 2011 - though Dana now administers three grant funds that did not exist then. Ten months ago Dana disclosed a cancer diagnosis and began intermittent FMLA leave, roughly 12 days over the period, all certified. The manager's notes reference 'unreliable attendance' and 'not a team player.' The manager now asks HR to approve termination effective in two weeks. The CBA requires just cause and progressive discipline. Dana has asked to see the personnel file and mentioned retaining a lawyer.
1. Should HR approve the termination now? Assess the record and recommend a course of action.
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No. On this record a termination would very likely be overturned in arbitration and would carry meaningful FMLA and ADA exposure.
What the record actually shows: one missed deadline and two summary ratings, against 13 years of satisfactory evaluations. There is no interim counseling, no documented feedback between ratings, no improvement plan, and no defined standard against which 'needs improvement' was measured. The position description is 14 years stale and omits the three grant funds Dana now administers - so the employer cannot even show that the expectations communicated to Dana matched the job being performed.
The leave issue is the bigger risk. 'Unreliable attendance' in a supervisor's notes, on an employee with certified intermittent FMLA leave, is a retaliation claim looking for a forum. FMLA leave cannot be counted against an employee for attendance purposes, and the timing - the ratings began before the disclosure, but the termination request follows it - invites a proximity argument. Cancer may also be a disability, triggering the ADA's interactive process and possible accommodation (modified schedule, workload adjustment, temporary reassignment).
Recommendation: decline the termination request. Substitute a written 90-day performance improvement plan with measurable goals, weekly documented meetings, an updated position description, and a clear statement of consequences. Address the missed deadline as a discrete performance issue with a defined standard. Treat leave as neutral in all documentation, and ask whether an accommodation would help. If the performance does not improve after a genuine opportunity, discipline can proceed on a defensible record.
2. What due-process requirements apply if the city ultimately proceeds toward termination, and how do they interact with just cause under the CBA?
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Dana is a permanent, post-probation employee with a property interest in continued employment, either under state law or the CBA. That triggers Loudermill requirements before termination:
- Written or oral notice of the specific charges and the evidence supporting them;
- An explanation of the employer's evidence - enough that the employee can respond meaningfully, not a full evidentiary hearing;
- A meaningful opportunity to respond to the decision-maker before the decision is final;
- A post-termination evidentiary hearing before an impartial body.
If the employee is represented and requests union presence at an investigatory interview that could lead to discipline, Weingarten rights apply. The CBA may add notice periods, timelines, and a PIP prerequisite - read it before drafting anything.
Just cause under the CBA is typically tested with the seven tests: reasonable rule or standard, notice of it, a thorough investigation before discipline, a fair and objective investigation, sufficient proof, equal treatment of similarly situated employees, and a penalty proportional to the offense. Compare the entire record: 13 years of satisfactory service, one missed deadline, no prior discipline, no improvement opportunity. The written reprimand is probably sustainable on its own; termination is not.
Document every step and keep the timeline tight - delay itself becomes an argument that the employer did not treat the matter seriously.
3. What systemic fixes should HR recommend to prevent this situation from recurring, and how should the lawyer's involvement change HR's handling of the file?
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Systemic fixes:
- Mandatory supervisor training on documentation, performance improvement plans, and the intersection of FMLA and the ADA - including the rule that protected leave never appears in an attendance narrative.
- HR review of any rating below 'meets standards' before it is issued, so unsupported ratings do not accumulate into a termination packet.
- A position description refresh cycle with a hard age limit; a 2011 description cannot support a 2025 performance case.
- A required improvement plan before any performance-based termination, with defined metrics and a defined review period.
- An audit of how employees on protected leave are rated and disciplined, disaggregated by unit and supervisor.
Handling the lawyer. Once counsel is retained, route all communication through the city attorney, issue a litigation hold covering emails, notes, evaluations, and leave records, and stop informal conversations about the case. Expect a public records request - personnel file, evaluation history, and any records of the manager's notes - and produce them through the records officer, not the supervisor. Do not alter or 'clean up' the file; the manager's contemporaneous notes, including 'unreliable attendance,' are exactly what will be produced, which is why the training above matters before the next case, not after.