Protected Activity Doesn’t Protect Against Poor Performance

By Jon Hyman

Sep. 9, 2014

Yesterday brought us two different 6th Circuit cases upholding dismissals of lawsuits in which the employees alleged that their terminations followed their exercise of protected activity.

  • In Wilson v. Cleveland Clinic Foundation, the hospital fired a patient transporter for failing to follow proper procedures for moving a post-surgical patient. That incident was not her first breach of protocol, as the hospital had previously suspended her for leaving a corpse unattended in a patient room. She had filed an Equal Employment Opportunity Commission charge after the corpse incident.
  • In Travers v. Cellco Partnership, the employer fired an employee with a history of performance problems on her first day back from Family and Medical Leave Act leave, after she made yet another on-the-job mistake.

These cases illustrate that it is not impossible for fire an employee on the heels of protected activity. In both cases, the court concluded that there existed no factual dispute as to the veracity of the performance problems, and that each was a terminable offense.

“Terminability,” however, is the key. If an employee can show either that stated reason for the termination (1) had no basis in fact, (2) did not actually motivate the employer’s action, or (3) was insufficient to motivate the employer’s action, then the employer cannot prevail on summary judgment.

Consistency is crucial. How did the Clinic and Verizon treat other employees who committed similar violations? If the treatment is consistent, it becomes difficult for the employee to establish either of the three indicia of pretext, even if the termination follows on the heels of the protected activity.

What can you learn from these cases? Protected activity does not per se protect a poor performer from termination, provided that you can demonstrate a history of treating similarly situated poor performers similarly.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at


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