Some of the tenets of good HR compliance include documenting and communicating performance issues and taking additional formal steps to alleviate them. If those steps fail, the employer can proceed with termination, being sure to document the reasons supporting the final decision.
A 65-year-old client manager sued his employer, an HR service provider, for age discrimination in connection with his separation of employment. However, when the case went to court, the defendant prevailed.
Why? Because it practiced what it preached.
In the federal court opinion I read last night, the plaintiff worked as a Client Manager for the defendant. In 2018, he began reporting to a new manager. In 2019, that manager provided the plaintiff with a former review of his 2018 performance. The review was not positive. She rated the plaintiff’s performance “below expectations” overall and met with the plaintiff to discuss it.
In the following weeks, the manager reported that the plaintiff continued to struggle with his job. So, the company placed the plaintiff on a performance improvement plan (PIP) the following month. The PIP outlined the specific areas of concern.
After delivering the PIP to the plaintiff, the manager met with him weekly to discuss his progress. Initially, the plaintiff improved. However, in the following months, the manager reported that the plaintiff’s performance waned, and he did not meet the PIP expectations.
In October, the manager contacted the company’s HR Director to explain her issues with the plaintiff and recommended termination. After the HR Director agreed, the manager memorialized the supporting reasons in an email to HR, the upper-level managers approved, and the company proceeded with terminating the plaintiff’s employment.
Critically, the company did not replace the plaintiff. (You’ll see why in a sec.)
The plaintiff sued for age discrimination. The plaintiff’s first task in proving it is to show that he (1) is a member of the protected class, (2) was qualified for the position held, (3) suffered an adverse employment action, and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. We call this a prima facie case.
Well, you can already see where the plaintiff’s case falters. The defendant never replaced the plaintiff. So, absent some direct evidence of discrimination (e.g., the defendant admitting to firing the plaintiff because of his age), there is no tenable age discrimination claim here.
But suppose the defendant had replaced the plaintiff with someone younger. He’d still lose.
Why? Because the plaintiff could not otherwise show that the defendant’s legitimate performance-based explanation for ending his employment was a pretext for discrimination. Indeed, the defendant had documented its performance issues for months, placed the plaintiff on a PIP, and thoroughly documented the process (including the ultimate termination decision.)
As the court explained, age discrimination law addresses “insidious” age discrimination. It “does not … provide a remedy for circumstances in which an employer terminates the position of an employee because it is no longer enamored with the employee’s performance, and where that employee’s performance has prompted an unfortunate obsolescence, as occurred in this matter.”