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Can You Fire Someone for “Fit”?

May 18, 2023

By Anthony Kaylin, courtesy of SBAM-approved partner, ASE

Be wary if terminating an employee due to “fit.” In a case coming out of the U.S. Fourth Circuit Court of Appeals, the court found that the “not a good fit” approach may be a legitimate reason for termination, but many lawyers say this could lead to major liability for the employer.

In Lashley v. Spartanburg Methodist College, No. 22-1447 (Fourth Circuit of Appeals, March 7, 2023), in 2017 Summer Lashley signed a contract to teach criminal justice courses at Spartanburg Methodist College (SMC) and to serve as the Director of the Criminal Justice Program. Per the one-year contract, Lashley taught a full course load in the Fall 2017 and Spring 2018 semesters.

Lashley reported a number of incidents that involved students and faculty that she perceived as female students being harassed by male students. These included reports of male athletes allegedly violating Title IX by sexually exploiting and bullying female athletes. According to Lashley, some of these incidents involved SMC employees covering up any misbehavior. So Lashley, assuming the posture of whistleblower, took her concerns to HR and reported what she knew. Further, Lashley also brought forth issues with her health, and her superiors started discussions with her on how to best accommodate these issues.

Yet, Lashley was also reported to have performance issues. Although her supervisor reported that though she was “pleased” with Lashley’s job performance after the Fall semester, she noted a variety of problems from course preparation to fraternizing with students, calling Lashley’s office a “student lounge.”

In addition, her supervisors received a number of complaints by students and faculty in which she had a difficult time working with others from personal conflicts to issues of inappropriate relationship with her a work-study student. It was testified to that Lashley also stated to her supervisor on “multiple occasions that SMC was not a good fit for her.”

SMC eventually decided not to renew Lashley’s contract for the following academic year. SMC claims this decision was the product of growing concerns regarding Lashley’s performance, professionalism, and conflicts with faculty and students.

Lashley claimed otherwise and filed a lawsuit against SMC for discrimination, retaliation, and engaging in an unlawful health inquiry as well as retaliation under Title IX.  The trial court dismissed all claims. The Fourth Circuit Court of Appeals affirmed the dismissal of Lashley’s claims.

The Court stated that the “not a good fit” rationale can often be “perfectly innocuous,” signifying that an organization’s mission would be hindered by a particular employee and said not a good fit might mean that “someone’s skills do not match up with the institution’s mission. Someone’s work ethic falls short of expectations, or someone is just not a good team player.” In the end, the court found that “not a good fit” was a legitimate reason for termination and not code for anything else.

“Not a good fit” though could be code for discriminatory or retaliatory justification, said Jennifer L. Curry, a management-side lawyer and shareholder at Baker Donelson Bearman Caldwell & Berkowitz PC. Carolyn Wheeler, a partner at worker-side whistleblower and employment law firm Katz Banks Kumin LLP, also agreed that it could be code for an underlying unlawful motive, especially in whistleblower cases.

The Fourth Circuit case may be an outlier. In a 2004 Fifth Circuit case, the Court found in a case against Homeland Security who stated that the female employee was not “sufficiently suited” for the position, and she wouldn’t “fit in” — is too vague and looks like pretext for another unlawful motive. “The Fifth Circuit decision said it best. It’s not a nondiscriminatory reason, it’s a no reason at all,” she said. “That’s how I think about it and how I would advise employers to think about it, if it was my job to advise employers” says Wheeler.

Therefore, be very careful using a “not a good fit” reason because, for many, it is a red flag. The best approach is to always focus on documented performance.

Source:  Lashley v. Spartanburg Methodist College, No. 22-1447 (Fourth Circuit of Appeals, March 7, 2023), Law360 4/20/23

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