Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


Why did President Trump fire FBI Director James Comey? As of press time for this blog post, the answer is that it depends on who you ask and what day, and sometimes what time of day, you ask them. A detailed timeline from the New York Times focuses on the shifting rationale, but the broad outline is that on Tuesday, May 9th, the surprise termination letter said the reason was to “restore public trust and confidence” in the FBI, and referenced that the President had accepted the recommendation of  Deputy Attorney General Rod Rosenstein, who grounded the advice in Comey’s poor handling of the investigation into Hillary Clinton’s email during the presidential campaign. Vice President Mike Pence and many others repeated that explanation. Then the next day, spokesperson Kellyanne Conway seemed to contradict that in an interview with Anderson Cooper saying it had “nothing to do with the campaign from six months ago.” Then one day later, in an interview with NBC’s Lester Holt, Trump himself seemed to abandon both explanations, criticizing Comey (some would say, ironically) as “a showboat” and “a grandstander,” the President said that it was his decision, a decision which was made before he received Rosenstein’s letter, and a decision that was based on Comey’s pursuit of the “made up story” on Russian involvement in the presidential campaign.  

Of course, in one sense, the explanation may not matter: Whatever the optics, the President does have the power to terminate the FBI Director. However, as I’m watching this all play out in the news cycles, it does strongly remind me of an employment litigation situation where unclear and inconsistent statements surrounding performance and termination raise the specter of that dreaded word, “pretext.” A company with the full right to fire someone for a good and legally defensible reason can still face the full force of a discrimination or retaliation claim if that good reason lacks credibility and is deemed a pretext instead. Ultimately, it ends up being a question for the juror or the arbitrator: Is the proffered reasons the real reason? On that subject, the Comey termination and the communication surrounding it serves as a good example of what not to do when offering an explanation for termination or other adverse actions in the workplace. In this post, I will look at a few of the main themes contributing to that list of “Don’ts.” 

Don’t Just Seek Refuge in Vagueness

President Trump’s letter to director Comey was on the short side: only about half a page. The language was very general. Employment litigators and inside counsel will sometimes encourage that brevity: Less to say, less to worry about. There is something to that, of course, but when the communication is not just brief but also abstract, then it becomes a canvas upon which an adversary can paint in the details of their own story. Trump’s letter fueled questions on the reasons for dismissal because it was general. It permitted speculation because of what it didn’t say.

In employment actions, effective communications from the company will be brief and to the point, while at the same time clear and substantive. Even “at will” terminations should be accompanied by a rationale, since your defense might someday require that you had a valid nondiscriminatory reason. New York Attorney Peter Panken advises “Making that reason explicit will guide choices consistent with that reason and, if there is a lawsuit, avoid the appearance of pretext.”  

Don’t Change the Story

Donald Trump’s team seems to have been surprised by the level of attention the action received, and had apparently done only minimal work on what the public message should be. As a result, people seemed to be winging it at a time when it was receiving wall-to-wall coverage in all of the major news networks. In that setting, tiny differences in messages would have been noticed, but due to the apparent lack of coordination, there were big differences.  

In employment cases, that inconsistency can be a big problem, since case law indicates that inconsistency itself is evidence of pretext. Iowa attorney and professor Deborah Neyens writes in ToughNickel“If the employer doesn’t stick to its original story as to the reason for the adverse action and later comes up with different or additional reasons, this is evidence of pretext that will shoot holes through the employer’s defense.” In failing to stick with the original story, it may not just be a matter of conscious or unconscious shifts, but simply the fact that more than one person has shared their views on it, and those communications will naturally differ in content and emphasis. And it is not simply the public reasons that matter, but everything discussed in discoverable documents and emails. So the best advice for companies explaining adverse actions (and the advice team-Trump maybe could have used): Decide on the rationale, make it clear, make it honest, and make sure everyone is onboard. 

Don’t Permit Off-Message Comments from the Top 

In the case of Comey’s termination, two days after the event, it seemed like those around Trump had (mostly) settled into an explanation: The President had taken advice from a respected deputy AG, and it had nothing to do with ongoing investigation. But then, Trump himself upended that card table in his interview with Lester Holt. “Oh, I was going to fire regardless of recommendation,” he said, “he made a recommendation but, regardless of recommendation, I was going to fire Comey.” As the interview hit the airwaves, you could almost hear the surrogates slapping their foreheads and asking, “Now what?” 

There are, of course, parallels to this in employment cases. For example, the human resources director might have one message while the boss has another. Or the CEO, the one who was far too busy for the witness preparation meetings, goes completely off message in the deposition. Even if that difference in content is simply a sign of a lack of direct involvement and knowledge, fact finders can be expected to give much greater emphasis to the boss’s words. So when forming and communicating a consistent message, everyone being on message means everyone: especially those at the top. 


Other Posts on Good Ways to Avoid Employment Litigation: 


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