Christine Sultuska was a part-time teller for JP Morgan Chase Bank. The Bank’s attendance policy allows for termination after an employee accumulates nine late arrivals within a twelve-month period. In the first half of 2016, the Bank’s records showed that Sultuska had accumulated eight tardies. The year prior, Sultuska underwent neck surgery for injuries sustained in a tornado (only in Oklahoma!). Sultuska apparently told her supervisor multiple times that her injuries were causing her tardiness, but she claimed the supervisor “criticized her for mentioning her neck issues at work.”

On June 24, 2016, Sultuska’s supervisor issued her a written warning detailing her eight tardies and letting her know that she was one late arrival away from dismissal. Sultuska then arrived to work eight minutes late on August 23, 2016, marking her ninth tardy in twelve months. She was terminated two days later for violation of the Bank’s attendance policy. After her termination, Sultuska sued the Bank for retaliation and discrimination based on her disability.

Despite the Bank’s attempt to dispose of the lawsuit based on Sultuska’s excessive tardiness, the court allowed the case to proceed because Sultuska called into question the accuracy of the Bank’s count of her late arrivals. Sultuska showed that on two of the dates listed by the Bank, she was not actually tardy. On one of those dates (June 7), the Bank was able to clarify that June 3 was the intended date and it was a simple error in what was written down on the form. But the Bank did not offer a substitute date or otherwise explain the second date (January 27) after Sultuska showed she was not actually tardy on that day. Because the attendance policy required nine late arrivals to justify termination—and without the January 27 tardy, Sultuska only had eight—the Bank could not base its decision on the policy alone. Sultuska’s claims were thus permitted to go to trial, where she could attempt to convince a jury that the decision to terminate her was discriminatory and retaliatory and not based upon violation of the Bank’s attendance policy.

What is the takeaway for employers? This case serves as an important reminder to make sure you are documenting absences and tardiness (and any other workplace infractions) sufficiently and accurately. Most of the time, the best way to do that is as the infractions accrue. Surely the Bank documented that Sultuska was tardy on January 27 for some reason, but they made an error at the time and then didn’t have any other evidence to justify or explain their decision once they were in court. Employers should marshal the documents they need to support employment decisions while the issues are still ongoing; it’s much easier to do so while things are fresh in your mind rather than trying to defend your decisions months or years after the fact (as the Bank unfortunately learned in this case).

By Rebecca D. Bullard, rbullard@dsda.com