Zamboni Operator on Thin Ice
By Lehr Middlebrooks Vreeland & Thompson, P.C.
August 23, 2019
The case of Graham v. Arctic Zone Iceplex, LLC (7th Cir. July 23, 2019) addressed the issue that arises so often with employers: there is no discipline or documentation, but a “final incident” occurs that supports the need for termination. In this particular case, Graham had a work-related injury, and after he was released to return to work, he crashed his employer’s Zamboni (ice cleaning and clearing) machine into the ice rink wall. This caused damage to the wall and the machine. Based upon that incident and considering prior issues about his attitude regarding a shift change, complaints from customers, failure to complete tasks in a timely manner, poorly driving the Zamboni, and insubordination, the company terminated him. He alleged that the termination was retaliatory for his injury, and in support of his claim, he said that he received no discipline for any of those prior incidents which the company said supported the reasons for termination.
Not always do judicial decisions reflect common sense, but in this case, the Court was right on center ice when it stated that an employer’s “decision to let something slide without a formal response does not mean that it went unnoticed or untallied. And even minor grievances can accumulate into a record that justifies termination.” Thus, if you find that discipline or documentation is lacking but the facts support the reasons for termination, move forward. Sometimes the risk to the business or the safety of others in order to start the disciplinary and documentation process is too much to take. For example, if the employer in this case concluded that it needed to suspend or warn Graham before termination, was that worth the risk that he would crash the machine again or otherwise fail to perform his job in a safe and effective manner?
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