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Your Employee Matters


By December 1, 2008No Comments

The U.S. Court of Appeals for the Fifth Circuit has ruled that if an employer terminates an employee based on a good faith, reasonable belief that an employee engaged in misconduct, which might later prove to be a mistaken belief, this mistake does not demonstrate that the employer’s reason for disciplining the employee was pretextual.

Facts of the Case: In Cervantez v. KMGP Services Co. the employer terminated the plaintiff after it discovered that his computer User ID and password had been used to access pornographic Web sites from one of the company’s shared computers in the break room. The company conducted an investigation and determined that the plaintiff had been at work on the dates that his User ID was used to access hundreds of these sites. When the plaintiff was told that he was being fired, he denied having visited any such Web sites, and then sued the employer, alleging that he was fired because of his age in violation of the Age Discrimination in Employment Act. During a subsequent unemployment hearing, the plaintiff was given a copy of the log of Web sites he allegedly visited with his User ID. The plaintiff conceded that the log showed attempts to access prohibited sites on dates that he was at work, but he also identified attempts made on dates that he did not work or at times long after his shift had ended.

The Court’s Ruling: The Fifth Circuit found that the employer’s reason for discharging the plaintiff – violation of its computer use policy – was a legitimate, nondiscriminatory reason, and that the apparent inconsistencies in the log detailing the Web sites the plaintiff allegedly accessed did not demonstrate that the employer’s reasons for firing him were pretextual. The Court held that “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.”

Lessons Learned: Employers often think that they must prove their suspicions regarding employee misconduct “beyond a reasonable doubt” before taking any action. This case, which is consistent with the law in most federal circuits, shows that the law does not require the employer to have irrefutable evidence of misconduct to take action. Employers who conduct a thorough investigation of the alleged misconduct and rely in good faith on the facts discovered in the investigation to make employment decisions limit their potential liability for discrimination claims, even if the facts relied upon later prove to be incorrect. Of course, employers must ensure that their investigations are thorough and do not exclude or ignore evidence that would ordinarily be considered.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (