When you look at a termination, you start with the reasons provided by the employer. In Donald Trump’s letter to former Director Comey, he starts by stating the Attorney General recommended that the Director be replaced. He thanks him for telling him three times that he was not the subject of the Russia investigation. See Trump’s letter here. Then,w e learn the Attorney General provided a memo to Pres. Trump upon which the President supposedly based his decision to terminate. That Memo describes Dir. Comey’s conducts regarding Hillary Clinton emails last Summer and last October.
Those two documents become the employer’s articulated response. Those are the reasons offered by the employer for the termination. As in any discrimination case, we then ask do those reasons make sense? In this case, not really. Pres. Trump has praised Dir. Comey many times for making public the investigation into Ms. Clinton’s emails. It strains credulity to believe he now sees those actions as performance deficiencies.
In employment cases, circumstantial science is admissible, If the employer has violated its normal procedures, that can help show an improper termination. Many, perhaps most cabinet level officials are asked to resign. It is actually quite rare to “fire” a cabinet level official. It is more common to ask an official to resign. Too, the fact that Mr. Comey was not notified prior to his dismissal arouses concern. If this was a performance based decision, why was he not notified first? If the employer truly wants improvement, why would it not notify the employee of performance issues? Why was a replacement not discussed and perhaps even vetted with Congress first?
So, the administration has not followed normal protocol in firing a cabinet level official in two ways, not personally discussing the termination with the official beforehand and not allowing him to resign. The White Hosue has not followed basic White House protocol. The employer could then argue that this is not a typical White House. There might be some merit to that argument. But, few employers are willing to state publicly that it violated protocol because it is not competent. Most employers just will not go there.
Then, we come to the mention of the Russia investigation in the letter actually firing Mr. Comey. That suggests the true reason was the Russian investigation. So, in the end, this would be a case in which the judge is not likely to dismiss or grant a motion for summary judgment. So, yes, this would be a case which most plaintiff lawyers would accept.