What do you get when a new supervisor in his late 20s begins managing a longtime employee who is 36 years his senior, begins documenting the employee’s alleged performance deficiencies while still giving him “meets expectations” reviews, and places the employee on a performance improvement plan (PIP) that results in his firing? An age discrimination lawsuit.
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What happens when you add decision makers’ comments indirectly referencing the employee’s age and implying he is too old for his position? Enough evidence to send the case to a jury trial. A decision by the federal district court in Monroe, Louisiana follows that storyline. Let’s take a look at what happened and what you can do to avoid finding yourself in a similar predicament.
Performance Issues Lead to PIP and Termination
Longtime employee “Gary” was a district manager in Republic National Distributing Co.’s Lakes Charles market and oversaw the company’s sales representatives in that area. In 2009, area manager “Evan,” who was in his late 20s, became Gary’s direct supervisor. Evan reported to division manager “Dane,” who previously had been Gary’s supervisor.
In 2010, Republic began documenting areas in which Gary needed to improve his job performance. Dane gave him a written warning concerning his poor performance in March 2010. However, in his annual performance reviews from 2010 to 2012, Gary received an overall rating of “meets expectations,” with a “needs improvement” rating in certain areas.
About 6 months after his 2012 performance review, Gary was placed on a 90-day PIP, which identified specific performance goals he needed to meet during the period. When he allegedly did not improve enough in those areas by the end of 90 days, Dane and Evan decided to fire him. Dane informed Gary that he was being discharged because of his performance.
Lawsuit Filed, Followed by Motion to Dismiss
Gary subsequently filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). He then filed a lawsuit asserting age discrimination claims under the Age Discrimination in Employment Act (ADEA) and the Louisiana Employment Discrimination Law. Republic filed a motion for summary judgment asking the court to dismiss Gary’s claims without a trial based on a lack of sufficient supporting evidence.
In support of its motion, Republic argued that Gary couldn’t prove his age discrimination claims because he wasn’t qualified for his position. Republic claimed his history of performance deficiencies and failure to improve during the PIP doomed his claims. Further, the company pointed to the March 2010 written warning, Gary’s annual performance reviews from 2010 to 2012, and the 2013 PIP, which ultimately resulted in his termination.
To avoid dismissal of his claims, Gary had to show that Republic’s reasons for firing him were merely a pretext, or smokescreen, to hide age discrimination—in other words, he would not have been fired but for his age. In support of his position, he pointed to evidence that fell into three categories:
- His job performance was adequate.
- His supervisors were biased against him because of his age.
- He was replaced by younger, less experienced employees.
To show his performance was not the problem, Gary cited his overall rating of “meets expectations” on his 2010, 2011, and 2012 performance reviews and the monetary incentives he earned, which he claimed were rewards for his performance.
He also claimed that the timing of the company’s documentation of his alleged poor performance and the fact that the alleged performance issues were raised by his new, much younger supervisor suggested age discrimination was the reason for his firing.
Republic countered by claiming that Gary’s overall rating didn’t negate his history of performance deficiencies and that the incentive payments he received were based on group, not individual, sales. The employer also argued that the timing of his write-ups and the arrival of his new, much younger supervisor were merely coincidental.
Motion Denied, and Case Goes to a Jury
Those disputed facts alone would have been enough to defeat Republic’s motion and send the case to trial. However, Gary also alleged that several managers made remarks implying he was too old for his position. Evan commented that Gary would be “challenged with revising his management style to accommodate a younger generation of salesmen.”
Dane remarked about “how old [Gary] was, stating he was getting on up in years, and [asking] when was he going to retire” and “how hard it was [for Gary] to work with the young people coming in.” According to the court, those comments, taken together, could lead a jury to determine that age discrimination was the real motive behind Gary’s firing, especially since the persons who made the comments were the ones who decided to fire him.
Finally, as if the cake needed more icing, the court considered the youth and inexperience of the two individuals who subsequently filled Gary’s position. All the evidence combined was more than enough for the court to send the question of whether Gary was discharged because of his age to a jury. Accordingly, the court denied Republic’s motion. Wilber L. Fontenot v. Republic National Distributing Co., LLC, Case No. 2:15-cv-01774 (W.D. La., Oct. 13, 2017).
How Can You Avoid the Same Predicament?
You’ve heard it before—it’s critical that managers be trained on what they can and can’t say in the workplace. The fact that the two managers who decided to make an issue of Gary’s performance and fire him also made age-related comments, including questioning his ability to work with younger workers, was a key factor in the court’s decision to allow a jury to decide the case.
In addition, make sure supervisors consistently enforce your company’s performance standards and are honest and accurate in performance reviews. In this case, the company apparently expressed no concerns with Gary’s performance until a younger supervisor arrived on the scene. Even then, Gary received “meets expectations” reviews on his annual performance evaluations.
If a manager has a problem with a subordinate’s performance, he should never “sugar coat” it. He should give the employee a realistic performance review that accurately reflects the problems that need to be corrected. If the manager doesn’t and you later have to fire the employee for poor performance, making nice to avoid confrontation and kicking the problems down the road for someone else to handle likely will come back to bite you.
Maggie Spell is an associate in Jones Walker’s labor relations and employment practice, and a contributor to Louisiana Employment Law Letter. She can be reached in New Orleans at mspell@joneswalker.com or 504-582-8262.