Favorite Firing: When a Supervisor’s Actions Make a Termination Difficult to Defend

4th cirI am typically suspicious of lawsuits in which a plaintiff employee alleges every possible form of discrimination against his or her employer. It seems unlikely that an employer is motivated by many different forms of bias when deciding on a disciplinary action or termination—race and gender and age and pregnancy can’t all be the basis for the decision, can they?

And yet, when an employer and its supervisors screws up a case so badly with multiple derogatory statements over a lengthy period of time, and when they then fire the employee shortly after she complains about the harassing conduct, the case is likely to get heard on the merits and will cost the company a lot of money to defend.

Such a case, Guessous v. Fairview Property Investments, LLC, No. 15-1055 (4th Cir. July 6, 2016), recently came before the Fourth Circuit Court of Appeals. The Fourth Circuit reversed the lower court’s grant of summary judgment to the defendant, and now the employer must gear up for a trial.

The Facts: In Guessous v. Fairview Property Investments, LLC, Monica Guessous, a female Muslim-American bookkeeping assistant of Moroccan descent, sued her employer, a property management firm, after she was discharged. Her complaint contained multiple claims, including discrimination based on religion, national origin, and pregnancy, hostile work environment, and retaliation.

Shortly after she was hired by Fairview, Ms. Guessous began reporting to a new supervisor, Greg Washenko. She alleged that Mr. Washenko began making offensive remarks when they were first introduced, when he said he had previously worked with a “bunch of Middle Easterners and they are a bunch of crooks who will stop at nothing to screw you.”

As their work relationship continued, Mr. Washenko allegedly discussed Moroccans, Muslims, and Middle Easterners repeatedly in disparaging and offensive ways, and asked Ms. Guessous questions about Middle Easterners, about suicide bombers and other terrorist acts, and about Islam. When Ms. Guessous told Mr. Washenko that Muslims were not terrorists, Mr. Washenko responded, “Yeah, sure. Like my buddy says . . . not all Muslims are terrorists, but most are.”

The Fourth Circuit opinion goes on for pages about Mr. Washenko’s comments. According to the Fourth Circuit, Washenko consistently conflated Ms. Guessous’s identity as a Moroccan Muslim with other Middle Eastern identities, so that the court had difficulty determining whether his remarks related to race, ethnicity, national origin, or religion.

When Ms. Guessous became pregnant, Mr. Washenko didn’t want to grant her a three-month maternity leave, and she had to tell him she was legally entitled to a 12-week leave. When she returned from maternity leave, her work duties had been assigned to other staff. Two months later, she asked Mr. Washenko for her old duties back and complained about his past behavior. Just 75 minutes after this meeting, the company president asked Fairview affiliates if they had openings for Ms. Guessous, because Fairview did not have enough work for her.

Then Ms. Guessous was terminated in March 2013. She was told the company did not have work for her. Her responsibilities were transferred to an outside accountant and to Mr. Washenko.

The Moral: This case demonstrates several problems for employers.

First, of course, is the alleged behavior by Mr. Washenko. In summary judgment rulings, the facts must be considered in the light most favorable to the plaintiff—in this case, Ms. Guessous. It is possible that a judge or jury after a trial will find that Fairview did not discriminate against Ms. Guessous. But with the allegations described in the Fourth Circuit opinion, Fairview is facing an uphill battle on liability.

Second, the Fourth Circuit indicated that the fact that Fairview didn’t have work for Ms. Guessous was not sufficient rationale to defeat her claims of discrimination. The Fourth Circuit said that the lower court had granted summary judgment for Fairview solely because the company did not replace her after she was fired.

“The court offered no elaboration in its opinion, but its logic appears to have been that, because the work was absorbed by Fairview’s other employees, Guessous cannot show that there was enough work to justify keeping her on staff and she therefore cannot prevail. If that is, indeed, the court’s reasoning it is a fallacy: because Fairview has shown it could operate without Guessous does not mean that it would have done so absent the protected activity.”

Thus, once an employer or its supervisors have engaged in discriminatory or harassing behavior, a restructuring of duties to get rid of an employee is also discriminatory. It seems unlikely that an employer can show any evidence to defend itself in such a situation.

In this case, the facts were particularly egregious. As the Fourth Circuit said,

“A reasonable jury could easily conclude, however, that the termination decision was made only seventy-five minutes after Guessous’ complained to Washenko about past comments and treatment, and that it was therefore motivated by the complaint itself.”

Thus, the Fourth Circuit said that a reasonable jury could find that Fairview’s argument that it lacked work for Ms. Guessous was a pretext for discrimination.

The morals to this case, then, are that (1) employers, including all supervisors, should refrain from disparaging comments about employees’ national origin, religion, and other protected categories; (2) employers should provide employees with all mandated leaves and other benefits without question; and (3) employers should not respond to employee complaints by immediately doing away with the employee’s job.

More broadly, the moral of this case is that employers need to be sure that discussions in the workplace about political and newsworthy events remain civil and that no racial, ethnic, or other protected group is mentioned in disparaging ways. A good moral for us all to take to heart in the middle of this political season.

When have you encountered managers who behaved inappropriately?

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We Are Formed By Those We Serve

Servant-as-Leader-600-x-600-e1417632687696-mnm4xm6n1cq5sae1iq6ntpk08do5anyw3katv3xjaoAn acquaintance recently quoted something he’d been told in a leadership development program: “You will be formed by the people you serve.” The program was for leaders in non-profit institutions, and so the service element made particular sense. But I have been pondering that statement for its relevance in all leadership contexts—no matter what organization you are a part of, you serve someone, and you are in fact formed by the people you serve.

I’ve mentioned “servant leadership” before, a philosophy named by Robert K. Greenleaf.  My point in my earlier post was that leaders who engage in systematic neglect—who focus on what they think is important and ignore other issues—must accept the consequences of not doing what they neglect. This post examines the root of servant leadership.

In the introduction to The Servant as Leader, Mr. Greenleaf stated

“ A new moral principle is emerging which holds that the only authority deserving one’s allegiance is that which is freely and knowingly granted by the led to the leader in response to, and in proportion to, the clearly evident servant stature of the leader.”

He describes the servant-leader as follows:

“The servant-leader is servant first . . . . It begins with the natural feeling that one wants to serve, to serve first. Then conscious choice brings one to aspire to lead. That person is sharply different from one who is leader first, perhaps because of the need to assuage an unusual power drive or to acquire material possessions. For such it will be a later choice to serve — after leadership is established. . . .
“The difference manifests itself in the care taken by the servant-first to make sure that other people’s highest priority needs are being served. The best test, and difficult to administer, is: Do those served grow as persons? Do they, while being served, become healthier, wiser, freer, more autonomous, more likely themselves to become servants? And, what is the effect on the least privileged in society; will they benefit, or, at least, not be further deprived?”

This is a high standard—to want to serve first, to meet others’ highest priority needs first, to help those served grow as persons. But think of what it means to one’s own development to aspire to this standard. If I aspire to serve, will I not in fact be formed by my attempts to serve?

If I seek to meet others’ needs, then I will become more discerning of what those needs are. If I seek to aid in others’ development, to make them healthier, wiser, and more autonomous, I will certainly become wiser myself and less autocratic. If I seek to benefit—or at least avoid depriving—the less fortunate, I must first become more humane and empathetic.

I think back on my own career. I admit freely that servant-leadership was often no more than an aspiration, and even more often not even on my radar screen. I fell far short of achieving any type of servant status.

Yet the people who reported to me formed me. Some brought substantive expertise to our department that I did not have, and they taught me. Some had far more emotional intelligence than I have, and they saw issues I glossed over. Some pushed at me when I didn’t want to be pushed, and made me a better and more articulate manager than I otherwise would have been.

Even before we are leaders in an organization, we serve. We have bosses. We have clients. These individuals form us also. So even before I was a manager, I was being formed by those individuals I served. Most of my bosses taught me both about our substantive areas of expertise and about corporate politics. Some of my bosses taught me positively by their examples, and others demonstrated behaviors I didn’t want to develop. My clients pushed me and pulled me to get their questions answered and their needs met. They shaped the expertise I developed.

In every case, I was formed by those I served.

When were you formed by who you served?

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What Role Should Government Play in Our Lives?

declaration.of.independence.04The question I ask in the title of this post—what role should government play in our lives?—is a fundamental question that has plagued our nation throughout its history. The same question plagues other nations as well, and it is probably at the root of the recent Brexit vote.

I recently read an editorial by Daniel Henninger in The Wall Street Journal on June 29, 2016, entitled Government Hits the Wall. Mr. Henninger quotes Ronald Reagan, who juxtaposed two schools of thought on what government should be as follows:

“We have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?”

So that is essentially the debate—can an elite group govern the people better than they can govern themselves?

Mr. Henninger describes the liberal point of view that in exchange for tax revenue, government bureaucratic experts will deliver socially desirable benefits equitably to the citizenry. The opposing conservative point of view is that we are each better suited to govern ourselves than anyone else is, and, to the extent government is needed, it should be close to the people.

There are pros and cons to both sides of this debate, as with any serious public issue. There is no question but that many people and communities do not govern themselves well. They need someone to impose and enforce restraints on their behavior. Except for the most extreme libertarians, most conservatives want some limits on people’s actions—the “my rights stop and the end of your nose” approach to government.

On the other hand, increasing the size of the national government (or even international, in the case of the European Union) moves government far from the governed. How can a distant national bureaucracy understand the local issues that give rise to controversy? How will a bureaucracy of “experts” stop itself and decide that no more regulation is needed? If the bureaucracy makes a mistake, who will fix it? Or will we all suffer?

At some level, it is all a matter of balancing. At what level does government operate best—national, state, local? The answer differs by issue. When is expertise of value and when is consensus more important? Best practices might best be disseminated on a broader level, but consensus is more easily developed in smaller groups.

In my opinion, the U.S. Constitution did a pretty good job of balancing federal and state responsibilities and individual and governmental interests. It isn’t perfect, and there are things in it I would change—probably different things than many of my readers would change.

In the end, it boils down to “the consent of the governed.” If it doesn’t, we devolve into tyranny. The British voters decided they no longer consented. For better or for worse, their government must address their concerns to avoid tyranny.

On this Independence Day in the United States, when our forefathers declared their independence from tyranny, where do you come down on the role of government—should we commit to governing ourselves (or at least to focusing on local government) or should we look to the national experts and accept a bigger bureaucracy?

Happy Independence Day!


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Performance Reviews—Make Them More Flexible to Make Them More Meaningful

Business Handshake2016 is half over. I’ve asked before in the middle of the year, are you halfway toward meeting your performance objectives?

That question is still a good one to ask yourself as a form of self-assessment. But it might need tweaking. From a management perspective, the question is probably less relevant than it has been traditionally. There is a trend away from annual performance reviews and annual objectives toward a more flexible system. I think this is a good trend.

Businesses from General Electric to IBM to Goldman Sachs are moving to more project-oriented, shorter term performance objectives. And if GE is changing, you know something is afoot—Jack Welch instituted the epitome of the “rank and yank” performance management system.

The best performance management systems focus on (1) on aligning employee performance with organizational goals and (2) communications between managers and employees. The “annual” nature of performance management worked better in a steady-state business environment than in today’s faster paced, ever-changing situations

I have long been an advocate of managers’ giving performance feedback more frequently than once a year (see here, here, and here). And if managers don’t conduct regular formal or informal performance reviews, employees should ask for more coaching and feedback.

But it’s all to the better if corporate systems promote this regular dialogue about performance.

The new IBM system, called Checkpoint, envisions shorter-term goals and quarterly progress reports. It judges employees on five criteria—business results, impact on client success, innovation, personal responsibility to others, and skills. So there are five scores, rather than a single performance rating.

GE is also moving toward a more flexible system with more frequent feedback.

And Goldman Sachs is dropping its numerical ratings in favor of “qualitative” feedback that is “real-time” during the year, rather than using annual reviews, though it is using verbal ratings of “outstanding,” “good,” and “needs improvement.”

All these systemic changes feel like they are moving employers in the right direction on performance management. But, as with most management tools, it isn’t the tool or the system that is important, but the communication between managers and employees.

As one writer recently pointed out,

“The more seriously an organization takes its performance review process, the less human a workplace it is!”

The focus should be on the human element, not on administering a system.

What is your company doing to keep its performance management system relevant to today’s workforce?

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A Lawyer’s Ethical Obligation When Clients’ Interests Diverge

How Mediators Manage Their Own BiasesLawyers are sometimes placed in a position where one client’s interest is contrary to another’s. Then what is the lawyer ethically required to do?

When the conflict is obvious—when two clients are on opposite sides of the same matter—the answer is clear. The lawyer must decline to represent one of the parties. If the lawyer has prior relationships with both parties, so that the lawyer has information that would help either party against the other, then the lawyer may not be able to represent either side in the dispute at hand.

The harder case is when the two clients are not involved in a dispute with each other, but their interests in a particular matter are opposed. An example of this situation arose in Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336 (2015).

In Maling, the plaintiff sought to hire the Finnegan law firm to obtain a patent on a screwless eyeglass hinge block. The law firm’s office in another city was seeking related patents for one of Maling’s competitors, Masunaga Optical Manufacturing Co., Ltd.

When Maling found out that the law firm was representing his competitor, he sued, arguing that he wouldn’t have sought his own patent had the firm told him about Masunaga Optical’s head start. By the time he learned of the conflict, Maling had spent millions of dollars developing products based on his unpatentable invention.

Although lower courts dismissed his case, Maling appealed to the Massachusetts Supreme Judicial Court. The Court ruled that “the simultaneous representation by a law firm in the prosecution of patents for two clients competing in the same technology area for similar inventions is not a per se violation” of the Massachusetts Rules of Professional Conduct. The Court’s rationale was that representation in unrelated matters of clients whose interests are only economically adverse, not legally adverse, does not ordinarily constitute a conflict of interest.

Despite ruling in Maling’s favor, the Court concluded:

“Although Maling’s complaint does not plead an actionable violation of rule 1.7 [of the Massachusetts Rules of Professional Conduct] sufficiently, the misuse of client confidences and the preferential treatment of the interests of one client, to the detriment of nearly identical interests of another, are serious matters that cannot be reconciled with the ethical obligations of our profession.

“. . . As noted throughout this opinion, there are various factual scenarios in the context of patent practice in which a subject matter conflict may give rise to an actionable violation of rule 1.7.”

Thus, the Court stressed that attorneys need to be careful in taking on representation of one client “to the detriment of nearly identical interests of another.” Under other facts, this case could have gone the other way, and the law firm might have lost.

Even though the law firm in Maling won, lawyers are best served if they broadly interpret what their client’s interests are and communicate with the client if any potential conflict with those interests might exist. Only in that way can attorneys protect themselves and their firms.

Clients expect that lawyers will keep their confidential information confidential, that lawyers will not deal with persons and entities adverse to the clients’ interests, and that their attorneys will advocate zealously on their behalf. Representing clients with divergent or opposing interests makes it difficult for lawyers to fully comply with their ethical obligations.

Lawyers, have you ever dealt with situations where clients had potentially divergent positions? What did you do about it?

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Managing Myself: Productivity v. Learning

Design Mascot Computer SalesI’ve always been an advocate of measuring productivity. When I worked in the corporate world, I ordered my days to meet the objectives my boss set for me. I influenced the setting of my objectives, but once we had agreement, I worked toward achieving them.

Now that I am self-employed, I still keep track of my activities each week and set goals for the year and for the week ahead. I break large projects up into phases and manageable pieces. I try to balance work on immediate tasks and the next steps in long-term projects.

I chafe when other people interfere with my plans to work productively. It’s easy to let family and friends and co-workers order my days for me. Their goals are not my goals, and when our goals conflict (as they inevitably will), one or both of us must compromise. If I don’t keep a laser eye on my own plans, if I don’t build in flexibility to address the necessary give-and-take of life, then I will not accomplish what I want. So I try to be flexible, yet focused.

Given my desire for productivity, I was intrigued to see an article in Inc.com a couple weeks ago by Michael Simmons of Empact titled “Average People Are Productive, Successful People Are Learners.” Because, of course, I consider myself successful, not average.

According to the article, learning is the ultimate productivity.

“The paradigm we should all consider for productivity is learning. As opposed to productivity hacks—as I said, there’s only so much in your day you can optimize—learning is an exponential process with no cap. What do I mean by this? The results of learning are twofold: better decisions and breakthrough ideas. This can give results that are 1,000x better, not just 2x better.”

What does it take to be a learner? Mr. Simmons’s article stresses the importance of reading. He suggests spending seven hours a week (one hour a day) reading—which translates, he says, to about a book every week.

That’s a good goal. I can measure that. I can build it into my personal objectives.

I do read. Mostly, I read for enjoyment, but I also read a lot of professional books and periodicals and online newsletters on human resources, dispute resolution, legal topics, business strategy, and the craft of writing. I probably spend close to an hour a day on these professional development activities every day, though I haven’t measured it daily.

Based on Mr. Simmons’s recommendation, I will try to be more mindful of how I read to learn. I will think about what I want to learn and focus more of my reading on these topics.

And I will seek out and measure other opportunities to learn—people with whom I can discuss topics I want to know more about, places I can go to see and hear and touch new experiences. In short, I will invest in myself and plan that investment into my productivity goals.

What do you do to be a learner?


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A Gorilla of a Crisis: Three Lessons for Managers After Harambe’s Death


(Photo: Jeff McCurry/ Cincinnati Zoo and Botanical Garden)

In February 2009, President Obama’s then-Chief of Staff, Rahm Emanuel, said, “You never want a serious crisis to go to waste.” The idea behind his comment apparently originated with the economist Paul Romer, who in November 2004 said, “A crisis is a terrible thing to waste.”

My corollary is that “A crisis can be happen at any time.” And leaders must be prepared for crises, whenever they occur.

I wrote last week about when time is on your side, and when it is not. I didn’t think I’d have a clear, well-publicized example of when time is not on your side so soon after that post.

When a toddler fell into the gorilla enclosure at the Cincinnati Zoo over Memorial Day weekend, the zoo leaders immediately had a crisis on their hands. It was a crisis in which time was not their friend—a human life was at stake. I don’t know who authorized the shot that killed the gorilla, but it was the right thing for the zoo personnel to do.

Of course it was sad—Harambe, a beautiful silverback gorilla in his prime, was acting like gorillas act. He was unintentionally providing the type of demonstration of gorillas’ strength that zoo visitors wanted to see (although none of them expected to see a child harmed). He didn’t deserve to die.

But the zoo personnel had no choice. There was no time to soothe the gorilla, who was banging the little boy about in a concrete-lined pool. There was no time to argue about how the boy got into the gorilla enclosure, or whether the fences were adequate. A human life was at risk, and the most certain way of eliminating the risk was to shoot the gorilla with a kill shot. Good crisis managers can make that call in an instant.

This incident offers three lessons for leaders of any institution, in my opinion:

1. Articulate and discuss in advance your principles for decision-making.

I’ve done some work with an institution that works with animals and the public, similar to the Cincinnati Zoo. That institution made it clear in their policy manual, given to all employees, that human life came first. The animals’ care and comfort were of primary importance, more so than offering the public the show they wanted, but human life and health were paramount to all other concerns.

Under the structure that this institution set out for its employees, the Cincinnati Zoo made the only call possible.

2. Don’t be dissuaded by public opinion; hold firm to your principles.

The Cincinnati Zoo has incurred a lot of wrath for killing Harambe. The negative publicity may have started with PETA, but many others have also spoken against killing the gorilla, which, as noted above, did nothing wrong. The Cincinnati Zoo has appropriately defended itself, explaining why it took the action it did in unapologetic terms.

When you and your employees did what you were supposed to do, explain yourself directly and undefensively. This is one reason to have your policies and principles articulated in advance. If you’re prepared, you shouldn’t feel uncomfortable with your explanation. The time to hash through your principles is before a crisis, not during.

3. Take the time to learn from each crisis.

After every crisis or near-crisis in which your principles are tested, it’s important to consider again whether any of your policies or procedures (or even principles) should change. No one is infallible, and we should refine and adapt as time passes and we face more complicated and nuanced situations. I am sure the Cincinnati Zoo has (or will soon) conduct some type of after-action review.

Other institutions can and should also learn from the incident involving poor Harambe. Where do your values conflict, and how will you prioritize them?

I’ve written this post from the point of view of institutional leaders. But it applies to us as individuals as well. Each of us has our own personal beliefs and values. How do you articulate them? How do you rank them? What do you do when they conflict? You should have some idea in advance, so that you do not dither when time is not on your side.

What would you add regarding the importance of being prepared for a crisis?

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