This morning Donald Trump twitted “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt”. The thing he’s neglecting to consider is that motivation matters in employment cases. I used to work with corporate HR, gathering data when employees were being investigated for breach of company policy. Thing is, the breach was rarely the impetus for firing the individual. It was just the easiest and most defensible reason for firing an individual. Even in an at-will work state, a company is still open to charges of discrimination when terminating an individual.
An example was a call centre rep who had no interest in being polite to customers. He was rude, sometimes vulgar, and happy to convey how little he cared about the callers problem beyond “dad made me get a job, so I’m stuck here talking to people like you for three more hours”. Sure, he could have been reviewed poorly on each quarterly cycle, placed in the performance improvement program designed to assist employees become at least average contributing members of the company, reviewed poorly another time or two, and then fired for poor performance. That’s 18 months of bad customer service to provide overly-cautious legal coverage for a possible wrongful termination suit.
Or we find some policy that he has violated — there are a lot of laws, there are a lot of company policies. Look hard enough and you can find a violation for just about anyone. Held the door for the person walking behind you? That violates security protocols. Printed a pass for a concert you’re heading to after work – misuse of corporate resources. Forwarding jokes via e-mail to coworkers, using company computer resources to surf the Internet … in this particular chap’s case, it was consistently signing back in after his break a few minutes late. I wrote a job that compared his sign-on time for the phone system with his break times and automatically alerted supervisor and HR when sign-on was late. The first day, he was verbally warned about signing in late. The next day he was written up. Day three was another write-up with a warning that the next infraction would result in termination. And the next day, he was terminated. Now this is an extreme example because the employee did absolutely nothing to change his the proximal cause of his firing (i.e. had he started signing into the phone when his break ended, they would have needed to come up with something else). But the fact remains, he violated a company policy. Termination was recommended to redress his repeatedly late return from break.
Equally possible that the call center manager could have a old dude that they want to fire because they are old. It isn’t like I was told of the guy’s failings that led to the investigation. Found that out later from office chatter. Sign into the system late, get fired … and still have a perfectly valid wrongful termination suit for age discrimination.
What does all this have to do with Trump? Well, he decides he doesn’t like Comey because the guy isn’t finding a convenient scapegoat and ending the Russia investigation. Trump asks some of his administration for their opinion of Comey’s actions regarding the Clinton investigation last year and gets honest feedback (the call center dude DID sign in late from his break). The distal cause for termination can still constitute obstruction of justice. And, yes, the very people who recommended the termination when provided the proximal cause may well consider the distal cause distressing.