Is Your Employee the Perfect Plaintiff in a Termination Case?

Should we be most concerned about a strong performer in a termination case?  “All my clients are excellent performers,” as one of our adversaries—wait we mean dear colleagues— put it. “Performance is subjective.”

It’s not a flawed argument. In fact, his position was that an employee’s performance is irrelevant to whether he takes their case because he can almost always make arguments that will enable a jury to decide that the employee was a reasonable fact finder.

For instance, if the employee had a long tenure, someone obviously thought they were worthy of staying there. If the employee had mediocre performance reviews, maybe a manager was exceedingly tough on them because of their protected class. If the employee failed to meet deadlines or was frequently tardy, perhaps it was because of a hostile environment.

Now, don’t get us wrong. When advising a client of litigation risks at termination, we absolutely consider an employee’s performance and any supporting documentation. We want to know our odds of coming out on the other side of these (sometimes tenuous) arguments by plaintiff’s lawyers. And it’s no secret that if you’re terminating an employee for poor performance, but their annual reviews and all other correspondence from managers show nothing but accolades, you have a steep and expensive journey ahead of you.

What makes an employee the perfect plaintiff?

It’s important to look out for strong evidence of protected activity. If an employee engages in protected activity, such as reporting harassment, complaining about wages, or requesting accommodations, and then they face an adverse action shortly after, they are a plaintiff’s lawyer’s dream.

Most courts apply a presumption that if an employee is fired or disciplined within four months of engaging in a legally protected activity, it raises a factual question for the jury as to whether the employer’s actions were driven by retaliatory intent. If a plaintiff’s lawyer knows the employee’s claims will survive summary judgment and get in front of a jury, that’s significant leverage alone. A reasonable settlement will often be more cost-effective than defense costs through trial.

Protected activity is also a fairly broad term, making it a critical factor to consider when evaluating litigation risks. Nearly every state and federal employment law includes protections from retaliation. Many states now have whistleblower laws that protect an employee from retaliation for raising, in good faith, what they believe is a violation of law in the workplace.

Do “soft skills” matter?

Absolutely. A well-organized, likeable employee will make a good witness, not to mention they’ll probably have some of your employees testifying on their behalf. Even if they haven’t yet won the hearts of those on the witness stand, when other employees see news alerts or learn of the litigation, they will at least question whether the company did something wrong.

No lawyer can predict whether you’ll face a lawsuit, nor can they prevent it from happening. A good lawyer, though, is asking the right questions—getting to know the employee’s situation and personality, and foreshadowing how witnesses or documents could look to a jury to help the client analyze litigation risks. Don’t be too much of a “believer” in your own case. Review the situation objectively, consider business factors such as defense costs, and weigh the benefits of an attractive severance agreement.

By taking a few extra moments to assess whether a departing employee has characteristics that could make them an ideal plaintiff, such as a history of raising complaints, associations in different protected classes, or the potential for significant damages, legal departments and HR teams can spot risks before they escalate.

Careful evaluation at the termination stage not only helps organizations make more informed decisions but also strengthens their ability to defend those decisions if challenged. In today’s environment, where even routine employment actions can lead to costly and disruptive litigation, proactive risk assessment isn’t just prudent, it’s essential.