One of the most basic supervisory/human resource responsibilities should be documentation of performance and disciplinary actions; however, it is often the most neglected. Notes and write-ups as well as formal performance reviews need to be consistently conducted and maintained on record by the employer.
A recent Sixth Circuit Case involved a discharge for poor performance and a subsequent age discrimination complaint. Ramona DeBra was a bank teller for 12 years at JPMorgan Chase and Company. For most of her career at JP Morgan Chase the employment records show she received ratings of “meets expectations” in performance reviews. However, two of her more recent performance reviews indicated a weakness in cash-handling skills. During her last two years her supervisor changed, and the new supervisor focused on trying to improve her cash handling skills. Because of on-going errors (both large and small) she was given direction to focus and improve her cash handling. She worked at two branches. These performance directives were documented by one branch manager who cross checked her performance with the other branch she was working at. Mistakes continued to happen, and Ms. DeBra was put on a formal Performance Improvement Plan (PIP) in 2013. The PIP stated the areas of improvement which had to improve, or she would face corrective action including possible termination. Ms. DeBra’s performance did not sufficiently improve during the PIP, and she was fired. She was 59 years old.
From management’s side, the Branch Manager had documented all performance issues and directives. The PIP was just one document. He had records throughout this process detailing the problems, the counseling, and the warnings.
Upon her termination, Ms. DeBra first filed a charge with her state’s human rights commission alleging age discrimination. Following the state agency complaint, she files her own age discrimination lawsuit. She claimed that she was fired while younger employees were making similar or worse mistakes and not fired.
The trial court granted summary judgement in favor of JPMorgan Chase because it determined Ms. DeBra did not meet the basic elements of her case. Her complaint did not show sufficient evidence of being singled out because of her age. She appealed to the Sixth Circuit Court (the federal court that covers Michigan). The Sixth Circuit saw that JPMorgan Chase had not only provided a legitimate nondiscriminatory reason for terminating her but kept records showing the supervisor was also tough on other younger employees. He had also given glowing reviews to a teller three years older than the plaintiff. Ms. DeBra’s allegation that younger employees were let off the hook for worse mistakes was true, but those employees were shown to work for other supervisors, one of which was the more lenient supervisor she had previously worked for and had not disciplined her for earlier errors.
The Court reviewed these facts but stated just because one manager is tougher than another does not mean age discrimination is the case. Remember, to defend itself the employer had to have documentation and records to use in its defense. Which it did. The Appeals Court panel found for the employer more than partly based upon the consistent documentation leading up to the discharge.
The take-aways from this recent case are:
- The tedious detailing of employee performance issues will help in a lawsuit.
- Failure to document will hurt your case.
- The employer’s decision to discharge the employee came after months of counseling and documenting performance before it took action.
- The bank’s management used Human Resources to ensure it followed proper protocols leading up to the discharge.
- The bank seemed to have dodged one or more bullets, however. It was clear that the bank did not follow a consistent disciplinary process for all employees. Supervisors had different standards when it came to performance reviews and taking disciplinary action.
This case illustrates that employers need to train supervisors and managers on how to properly conduct performance reviews and document deficiencies. Human Resources needs to provide consistent guidance on disciplinary procedures and investigation processes to ensure protocols are followed before a discharge is conducted.
Additional ASE Resources
ASE HR Hotline - ASE’s Hotline can provide members with information and feedback as well as policies and procedures to enhance your organization’s performance management.
ASE Talent Development - ASE’s training programs for HR professionals and supervisors provides skills and knowledge that will help an employer set up policies, procedures, and systems that will avoid wrongful termination complaints and lawsuits and also help in the successful defense of such claims if they come along. View upcoming courses here.
ASE HR Assessment - ASE’s consulting services can provide help auditing your personnel files to check for consistency in record retention practices. This includes I-9 reviews. For more information, please contact Mike Burns.
Source: 6th Circuit Credits Documentation In Age Discrimination Case Updated: February 14 2019 Article by Kara E. Shea Butler Snow LLP