One of the biggest disciplinary issues HR encounters is a lack of performance or discipline documentation on an employee that a manager wants to terminate. It is very difficult for HR to proceed with a termination request when the employee has only stellar performance reviews in her file.
In the case of Mourning v. Ternes Packaging, Indiana, Inc, No. 16-1650 (7th Circuit Court of Appeals, August 18, 2017), Mourning worked for Ternes Packaging–Indiana, Inc., from 1997 until the company fired her in 2013. Ternes has only one client, Allison Transmission, Inc., for which it provides “bundled services,” including “clerical support … [,] material control, administrative services for orders, secretarial, shipping, and traffic [support].” Since 1999, Mourning managed the “Order Administration” division. In that role she oversaw 10 employees. Mourning reported directly to Frey, the general manger, throughout her tenure.
In February 2013, Mourning requested FMLA leave to treat encephalopathy. Mourning returned to work less than two months later.
The minute Mourning left on leave, eight of her ten subordinates jointly submitted to Frey an “internal complaint” against her. The employees complained that Mourning intimidated and publicly humiliated them, acted unpredictably, and generally micro-managed her team. There were two individual complaints specifically alleging that Mourning had publicly humiliated them.
Mourning had never been the subject of a written complaint, nor had she ever been disciplined. In each of her annual evaluations, aside from the first one after her promotion to manager in 1999, Frey had rated Mourning’s performance as above “exceptional” – even as recently as her last evaluation in May 2012.
Frey showed Mourning her subordinates’ complaint, and Mourning responded with a written rebuttal and her own internal complaint against the staff. She carbon-copied Howard Ternes’s vice president of finance, thereby alerting the parent company to her subordinates’ complaint against her.
Frey’s boss, Brown, showed up for a routine visit and Frey told her all the issues going on with Mourning and her department. Brown then met with a director at Allison Transmission who worked directly with Mourning, and this director told her that Mourning’s “performance was not up to his standards,” particularly because Mourning was not using “some data systems”―a concern that he had previously discussed with Frey.
A full-fledged investigation followed and found that that Mourning had exhibited “unprofessional conduct toward direct reports” and had “fail[ed] to satisfy customer expectations.” Interestingly enough, as a result of the investigation both Frey and Mourning were terminated. Frey was fired for failing to inform higher management of the complaint and for failing to manage Mourning effectively. Mourning was fired based on the investigation’s finding that “Mourning’s performance had resulted in neither her order administrators nor her customers wanting to work with her.”
Mourning filed a lawsuit alleging FMLA retaliation and gender discrimination. The trial court granted summary judgement to Ternes. The 7th Circuit Court of Appeals affirmed the summary judgement. The Court stated that mere allegations did not provide evidentiary support of her claims and that her performance was the center of the situation.
An unusual but proper move, the manager of Mourning, Frey, was fired for allowing a situation to continue which he could have stopped or corrected if he had managed both Mourning and the department properly. Mourning was fired for performance even though her performance reviews were excellent.
The takeaway though, is that most employers won’t take the step of firing or even disciplining the manager’s manager. Yet, to avoid situations where managers just continue affirming bad behavior by failing to manage properly, everyone in the chain needs to be held accountable. This includes providing training and coaching as well as being fairly strict in how performance management is implemented within the organization. It may be an uphill battle for HR, but otherwise poor performance will continue to be unchecked and the employment brand will take a big hit.