Showing posts with label poor performance. Show all posts
Showing posts with label poor performance. Show all posts

Thursday, June 22, 2023

Temporal Proximity and Informality of Performance Coaching Is Insufficient to Show Pretext for Termination

Earlier this month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an Emergency Paid Sick Leave Act of 2020 retaliation claim where the employee was fired before she returned from the emergency COVID leave.   Kovacevic v. American Int’l Foods, No. 22-1675 (6th Cir. 6-1-23).  Despite the temporal proximity between her protected conduct and her termination, the employee could not show pretext when the employer had repeatedly counselled her about her constant mistakes since when she had been hired 11 months earlier and had begun recruiting and interviewing replacement candidates before she called off sick.  The final straw had been finding many more undisclosed performance problems while the employee was on leave.  Ten other employees – over 25% of the workforce -- had taken COVID emergency leave and not been fired before or after returning to work. While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”  Pretext could also not be shown by the informality of her frequent coaching.

According to the Court’s opinion, the plaintiff employee was hired as an accounts payable specialist in January 2020.  While she was always exceedingly pleasant, she never mastered her job duties.  Some vendors went unpaid for months.  Some were overpaid or paid early.  She could not find basic accounting records, like invoices.  Because of her mistakes, checks needed to be re-run several times each week.  She thought that these mistakes were a “little things.”  Since she was hired, voided checks increased 952%.  In August, her boss told HR that he wanted to replace her and confidential advertisements were placed in October.  An interview was scheduled for November 10. 

On November 15, the plaintiff called off sick for COVID and wanted to remain off work until after Thanksgiving.  Her boss took over her duties in her absence and discovered over 95 blanks checks out of sequence that had been forgotten, 70 past due invoices, over $100K in vendor credits that had not been applied, and $2.5M active invoices that had not been organized or alphabetized.   He telephoned her on November 24 to inform her that her employment was being terminated (despite having not yet hired a replacement).   She filed suit.

Assuming that she could show a prima facie case of retaliation, the Court focused on whether she could show that the explanation for her termination – her ongoing poor performance – was pretextual and just a disguise for unlawful retaliation.  She argued that her poor performance did not actually motivate her termination.

While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”

While it was suspicious that she was fired while still on COVID emergency leave, the Court found no reasonable jury could find the timing suspicious when her documented performance issues were legion, recruitment had been underway before she called off sick and numerous and serious performance issues were discovered after she called off sick.

The Court also rejected her argument about shifting justification.  She claimed that just before she was fired, HR had mentioned that they had not yet decided what to do with employees returning with COVID.  However, she also claimed that her sole basis for believing that her performance was satisfactory was that HR also told her that she had a very positive disposition.  Granted, “when an employer expresses disapproval of an employee’s work performance only after the firing, there can be a genuine dispute of material fact about whether the employer’s reason for terminating the employee was pretextual.”  But in this case, the statement about returning employees was not evidence of retaliation when the Company had welcomed back more than 25% of its workforce from COVID sick leave.  Further, the HR employee was not the individual with personal knowledge of her work performance and there was no legitimate dispute that her supervisor was unhappy with her work performance.

The Court also rejected her argument that the supervisor had fabricated the justification for her termination by not informing HR of them before she was fired:

Nor can she show that [her supervisor’s] discoveries during her absence were fabricated justifications for terminating her. [Her] evidence of fabrication is that [he] did not document each incident or mention these issues to [HR] before she took COVID leave. Based on this, [she] argues that a reasonable jury could have found that [he] merely claimed to find evidence of poor performance while filling in for her in order to justify firing her for taking COVID leave.

[Her] argument fails here. [His] emails to [her] addressing her errors throughout her employment are contemporaneous documentation of her poor work performance. And even if [he] had not emailed [her] on each of these occasions, failure to document contemporaneously does not necessarily give rise to an inference of pretext.

The Court also rejected the plaintiff’s argument that her alleged poor performance was merely pretextual when she was not given formal performance warnings and progressive disciplinary policies were not followed and because she was not given the required performance evaluations from her offer letter and the employee handbook.  Unlike some employee handbooks which provide that progressive discipline will generally be followed, this employee handbook merely stated that it was an option when appropriate.

She alleges that [the company] failed to follow the procedure for progressive discipline outlined in the Handbook because [her supervisor] never explicitly referred to his criticisms of her work as “warnings.” True, where an employee handbook establishes a general practice of counseling employees before terminating them, a company’s failure to follow that practice may be evidence of pretext.

             . . . . . In any event, [her supervisor] repeatedly brought his concerns with [her] work performance to her attention, remarking on at least one occasion that her “errors” could not “continue to happen.” . . . So the fact that [he] did not formally tell [her] that he was warning her within the terms of the company’s progressive discipline policy simply does not demonstrate pretext.

 . . . True, an “employer’s failure to follow a policy that is related to termination or demotion can constitute relevant evidence of pretext,” . . . But even if [the company] did not strictly follow its review policies, [she] was certainly on notice that her performance was causing issues and had the opportunity to correct those problems. [Her supervisor] regularly notified [her] of problems with her performance, both via email and in person. And she still did not adjust her work performance. So [his] efforts—accomplishing the corrective objective that an annual review would—combat any finding of pretext.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Monday, April 13, 2015

En Banc Sixth Circuit Upholds Regular Attendance and Physical Presence Requirement and Rejects EEOC’s Telecommuting Accommodation Under ADA

On Friday, a divided en banc Sixth Circuit affirmed an employer’s summary judgment in an ADA case where the employee sought permission to work from home on an as needed basis as a reasonable accommodation under the ADA.  EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. 4-10-15).  In doing so, the Court rejected an earlier 2014 decision by a divided Sixth Circuit panel (which was reported here) that had granted summary judgment to the EEOC and found that physical attendance at a job site was no longer generally an essential job function.  The Court found that while the ADA requires employers to provide reasonable accommodations, “it does not endow all disabled persons with a job—or job schedule—of their choosing.”  Relying on prior case law, ADA regulations, EEOC informal guidance, and common sense, the Court concluded that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.”  Moreover, the Court found that an employer need not engage in the interactive ADA accommodation process when the employee is unqualified for the job.  The Court also rejected the Plaintiff’s retaliation claim in very strong language.  Five judges dissented. 

Background.  According to the Court’s opinion, the plaintiff’s job required her to regularly meet face-to-face with other company employees, although she could communicate on some issues by telephone and email.  However, her position required her to work in the same building as certain other jobs so that they could meet “on a moment’s notice” when needed, which the employer found to be the most effective form of communication for that position.  Hired six years earlier, the plaintiff performed very well her first few years, but her performance evaluations steadily declined beginning in the fourth year until in 2009, she was not meeting the basic functions of her position.  She was informed that she” lacked interpersonal skills, delivered work late, didn’t show a concern for quality, and failed to properly communicate with the suppliers. She again ranked in the bottom 10% of her peers.”  In 2008, she missed 1.5 days/week and in 2009, she was absent more than she was present. “And when she didn’t miss work, she would often come in late and leave early.”  As is typical in these situations, everyone around her was frustrated: 

When she missed work, her teammates had to pick up the slack, including by taking on the functions that [the Plaintiff] could not perform at home. Her supervisors also had to assume her job responsibilities. Her absences caused the resale-buyer team “stress and frustration,”  . . .  further compounded [her] mistakes, and frustrated suppliers.
The Plaintiff’s chronic irritable bowel syndrome contributed to this situation since she could suffer an uncontrollable episode at work or while driving (an hour each way) to and from work.  The employer attempted to help her on several occasions.   Her first supervisor adjusted her work schedule to 4 ten-hour days and allowed her to telecommute on a trial basis as needed for two months.   However, the Plaintiff was unable to establish regular and predictable attendance and perform the core functions of her job.  A new supervisor also attempted another trial telecommuting experiment, which also failed.   Nonetheless, the Plaintiff sought to telecommute four days/week, which had been permitted for other positions at the Company.  However, the Company only permitted her co-workers to telecommute one day each week, not four as requested by the Plaintiff.  When reviewing her core job responsibilities with her while considering her telecommuting request, the Plaintiff
admitted that she could not perform four of the [ten tasks] from home, including meetings with suppliers, making price quotes to stampers, and attending some required internal meetings. [She] added, however, that she did not envision needing to stay home four days per week, only that she wanted the freedom of “up to 4 days.”
Her request was rejected on the grounds that four of the ten tasks could not be performed at all from home, four other tasks could not be performed effectively from home and the remaining two tasks were not significant enough to support telecommuting.  Although the employer rejected that specific accommodation request, it offered other accommodations, including placing her office closer to a restroom or transferring her into a job which would allow her to telecommute.   She rejected those offered accommodations, failed to identify any other potential solutions, and filed a Charge of Discrimination with the EEOC.
The Plaintiff’s job performance did not improve and she again ranked in the bottom 10% of her peers for the second year in a row. Although she claimed the evaluation was retaliatory, she did not elaborate and was placed on a performance improvement plan.  After she still failed to complete tasks completely or on time during the plan period, she was terminated.  She filed a retaliation Charge and this litigation ensued two years later.
ADA Reasonable Accommodation Claim.  In affirming the employer’s summary judgment, the Court reviewed some basic ADA requirements.  Although an employer is required to provide a reasonable accommodation (which can include job restructuring or modified work schedules), an employer is not required to remove essential job functions.  “[T]hat is per se unreasonable.”  In addition, “the essential-job-function inquiry does not require employers to lower their standards by altering a job’s essential functions.”  Moreover, “[t]he employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job.”  

In this case, the Court agreed that “regular and predictable on-site job attendance [is] an essential function.”  The Court observed that most courts have “establish[ed] a general rule that, with few exceptions, “an employee who does not come to work cannot perform any of his job functions, essential or otherwise. . . . And for good reason: ‘most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.’”  The Court also cited and analyzed the EEOC’s ADA regulations governing essential job functions and found that they supported this conclusion.  

To guide the essential-function inquiry, the regulations speak in factors—seven of them.  . . . In many jobs, especially the interactive ones, all seven point toward finding regular and predictable on-site attendance essential. Take the amount of time performing that function, for example, § 1630.2(n)(3)(iii): Most of one’s work time is spent at work, and many interactive functions simply cannot be performed off site. Or take the consequences of failing to show up for work, § 1630.2(n)(3)(iv): They can be severe.  . . . Ditto for the terms of the collective bargaining agreement, § 1630.2(n)(3)(v): They certainly won’t typically exempt regular attendance. Other employees’ work practices are no different, § 1630.2(n)(3)(vi)–(vii): Other employees usually attend work at the worksite. And  so on, such that most jobs would be fundamentally altered if regular and predictable on-site attendance is removed.

The Court also rejected the EEOC’s argument that permitting any telecommuting by a co-worker meant that the employer had to grant unlimited and unpredictable telecommuting to the Plaintiff:
In addition to being legally and factually unsupported, the EEOC’s view here would cause practical harm to private employers. The ADA encourages—indeed, requires—employers to make reasonable accommodations for its employees, including allowing telecommuting under the proper circumstances. 42 U.S.C. § 12111(9)(B). But if the EEOC’s position carries the day, once an employer allows one person the ability to telecommute on a limited basis, it must allow all people with a disability the right to telecommute on an unpredictable basis up to 80% of the week (or else face trial). That’s 180-degrees backward. It encourages—indeed, requires—employers to shut down predictable and limited telecommuting  as an accommodation for any employee. A “good deed would effectively ratchet up liability,” which “would undermine Congress’ stated purpose of eradicating discrimination against disabled persons.”  . . . The practical effect? Companies would  tighten telecommuting policies to avoid liability, and countless employees who benefit from currently generous telecommuting policies would suffer. A protective tool becomes a weapon if used unwisely; and telecommuting should not become a weapon.
The Court also rejected the EEOC’s “charm[ing]” argument that it was “self-evident” that technological advances had removed the requirement of physical presence at the workplace.  While this may be true of some jobs, the evidence in this case did not show that.
But technology changing in the abstract is not technology changing on this record.  . . .And no record evidence—none—shows that a great technological shift has made this highly interactive job one that can be effectively performed at home.
The technologies used by the employer were the same technologies available when other courts still found physical presence to typically be an essential job function for most jobs.  These technologies—email, computers, telephone, and limited video conferencing—were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs.” 

ADA Interactive Process.  The Court made some surprising observations about the interactive process.   

Our conclusion that [the Plaintiff] was unqualified for her position makes it unnecessary to consider whether [the employer] showed bad faith in the discussions to work out a reasonable accommodation while [she] was still employed. Even if [the employer] did not put sufficient effort into the “interactive process” of finding an accommodation, 29 C.F.R. § 1630.2(o)(3), “that failure is actionable only if it prevents identification of an appropriate accommodation for a qualified individual.”  . . .Courts thus need not consider this form of nonindependent liability “if the employee fails to present evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation.”  . . . It suffices here to hold that any failure by [the employer] does not create liability because, as we just concluded, the EEOC did not produce such evidence.

In any event, the employer did engage in the interactive process by suggesting and experimenting with multiple possible accommodations.
Summary Judgment Issues.  The Court also made some notable conclusions about burdens of proof at the summary judgment stage.   For starters, the Court made the employee’s opinion testimony about her own essential job functions practically irrelevant.
An employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment, for it does not create a genuine dispute of fact. Neither the statute nor regulations nor EEOC guidance instructs courts to credit the employee’s opinion about what functions are essential. That’s because we do not “allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.” Mason, 357 F.3d at 1122. And for good reason: If we did, every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer to exempt an essential function think they can work without that essential function.

In any event, the Plaintiff’s testimony did not save her case because she still admitted that she could not perform four of her essential job functions from home, did not testify that she could “the vast majority of” job functions as effectively from home as from the work site.  Because the employer is not required to lower its production standards as an accommodation and the past telecommuting experiences with the Plaintiff had shown that this accommodation would not work, the Plaintiff’s testimony was rejected by the Court.  

The Court also rejected the Plaintiff’s testimony about her subjective impression of regular meetings with her supervisor about her poor attendance.  

We “look at the facts as they appear to the person making the decision to terminate [the employee],” not at “the employee’s subjective [beliefs].”  . . .Harris’s unexpressed “subjective skepticism regarding the truth of” whether [her supervisor] was actually trying to help her does not alone “raise a triable issue as to pretext.”  . . .Plus, these kinds of meetings do “not constitute harassment simply because they cause the employee distress.”
In contrast with the Plaintiff’s biased testimony, evidence about the telecommuting schedules of plaintiff’s co-workers was relevant under the ADA regulations and as evidence of the employer’s judgment.  However, it was not helpful to the Plaintiff because telecommuting had only been permitted by strong performers one set day each week with the understanding that those co-workers still had to come to work when needed.  

None of this is to say that whatever the employer says is essential necessarily becomes essential.  . . . Suppose, for instance, that a fire department regularly allows certain firefighters to refrain from driving fire trucks. But then the department denies the same accommodation to a firefighter with a known disability that prevents her from driving the trucks. A genuine fact issue might exist as to whether driving a fire truck is actually essential—it is contradicted by materially similar job practices.  . . .Our ruling does not, in other words, require blind deference to the employer’s stated judgment. But it does require granting summary judgment where an employer’s judgment as to essential job functions—evidenced by the employer’s words,  policies, and practices and taking into account all relevant factors—is “job-related, uniformly-enforced, and consistent with business necessity.”
Retaliation Claim.  The Court also rejected the EEOC’s retaliation claim. "Discrimination here means retaliation—that “but for” an employee’s statutorily protected activity the employer would not have taken the “adverse employment action.”  In this case, the EEOC could not show that the employer’s explanation for terminating the Plaintiff’s employment – her back-to-back poor performance evaluations and failure to satisfy her performance improvement plan – was pretextual. 

No reasonable jury could find that Ford terminated Harris for a reason other than poor performance. Harris’s performance and interpersonal issues have been well documented. The EEOC indeed admits they existed. Suffice it here to say that, among other problems, Harris failed to update spreadsheets, complete her paperwork, schedule her training sessions, price items correctly, and finish her work on time. Her performance issues  are why she ranked in the bottom 10% of her peer group before she made her charge.
Granted, the Court agreed with the EEOC that the timing of the Plaintiff’s termination seemed suspicious – coming a mere four months after she filed her Charge.  But while this ‘gives us pause,’ ‘temporal proximity cannot be the sole basis for finding pretext.’”    

The Court rejected the argument that the Plaintiff’s supervisor harassed her about her attendance because her subjective distress about the meetings was not reasonable and, more importantly, her supervisor played no role in the decision to terminate her employment.  He was on vacation when she was terminated and was never consulted on the matter.  

The Court also agreed that it seemed suspicious that the first time the Plaintiff received a “lower achiever” performance rating was only a few months  after she filed her Charge when, in the past, she had always received at least an “excellent plus” rating.   However, this was adequately explained as a mere change in terminology that took place in all performance evaluations in 2009 and that her percentile ranking – bottom 10% -- had not changed in two years.  

At first glance, this looks bad for Ford. Harris received her first “lower achiever” rating post-charge, and she received only “excellent plus” ratings before her charge. The EEOC stops there. But digging deeper—and looking at the whole record—reveals two reasons why no reasonable jury could find this low rating proof of pretext. For one, 2009 was the only year that Harris could have received the lower-achiever rating. Ford overhauled its ratings system that year for all employees, ditching the default “excellent plus” category (which 80% of workers received) in favor of a more accurate description of a worker’s performance. In Harris’s case, that meant “lower achiever”—the first and only time she could receive that rating. For two, the change in name did not change Harris’s low numerical ranking. In her only performance review after the charge, she ranked in the same percentile range as she did immediately before the charge: the bottom 10%. That’s not evidence of retaliation; that’s just poor performance—both before and after the charge.

Finally, the Court rejected the Plaintiff’s speculative testimony that she was set up to fail in her performance improvement plan.   

The record shows that Harris failed two prior plans to improve her performance and attendance, similar to this one—and both before she filed her charge. The record also shows that Harris failed to achieve any of the objectives identified in post-charge plan, . . .—not just the objective the EEOC says is evidence of retaliation (eliminating her backlog of paperwork, see Dissent Op. at 38–39.). And the record shows that Ford used similar performance-enhancing plans for other employees who, like Harris, performed poorly.  . . . Harris’s testimony thus fails to create a genuine dispute of fact because it is “so utterly discredited by the record that no reasonable jury” could believe it.

In any event, the Court also concluded that the EEOC failed to prove ‘but-for” causation as part of the prima facie burden of proof – i.e., that the Plaintiff would not have been fired but for filing her Charge of Discrimination.
In addition to Harris’s past failings, she admitted that she would not be able to attend work on-site in a regular and predictable manner in the future. And this attendance was an essential element of her job. No reasonable jury could find that Ford—a for-profit corporation— would continue to pay an employee who failed to do her job well in the past, and who, by her own admission, could not perform the essential elements of her job in the  future. The EEOC thus cannot demonstrate that Harris’s charge was the but-for cause of Ford’s decision to fire her, which means that Ford was entitled to summary judgment for that reason as well.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Monday, January 5, 2009

Delaware County Court of Appeals Reverses Employer’s Summary Judgment on Age Discrimination Claim of Fired Salesman With History of Declining Sales.

Last month, a divided Delaware County Court of Appeals reversed summary judgment on an age discrimination claim which had been entered in favor of an employer and against a salesman who had been terminated for poor performance. Peters v. Rock-Tenn Co., 2008-Ohio-6444. According to the court, the plaintiff alleged that he had been set up to fail by his employer when it doubled his sales quota and required him to sell new products. The employer showed that his sales had declined in each of the prior four years. Problematic for the employer, however, was evidence that the sales goal of the plaintiff’s significantly younger replacement was no greater than the plaintiff’s actual sales.

According to the court’s opinion, the plaintiff alleged that he had been terminated from his sales job in January 2007 after 25 years of employment based on his age. In particular, he alleged “that he had been assigned additional duties without adequate support and training, as a pretext for terminating his employment.” In the year before his termination, his new supervisor both doubled his sales goals and required him to begin selling new products in territories already covered by existing sales agents. However, the sales goal of his significantly younger replacement was less than the plaintiff’s goal; the replacement was apparently only required to match what the plaintiff had sold in his last year of employment.

The employer contended that the plaintiff had been discharged for unsatisfactory performance. According to the employer, the plaintiff’s sales had actually decreased in each of the prior four years and he had only successfully solicited one new client in the last three year (which brought in less than $1,000 in sales commission). His supervisor testified that he was among the poorest performing salespeople. In essence, he was “coasting” on his existing client base and was no longer effective at generating new sales – or even maintaining his existing sales level.

However, the plaintiff produced evidence that he had received a large bonus for 2006, and that he had been commended by his supervisor for receiving a perfect satisfaction score from his largest customer. He also argued that by doubling his sales quota and assigning him new products to sell, the employer was setting him up to fail and shared the blame for his declining sales performance. Surprisingly, the court of appeals found this argument to be sufficient to create a material issue of disputed fact which could only be resolved by a jury trial and not by a judge on summary judgment.

The court indicated that it was rejecting supposed evidence of discriminatory intent -- based on a comment by a non-decisionmaker (a plant general manager) that he and the plaintiff were the “old” company – because it was isolated and ambiguous.

In his dissent, one judge noted that the plaintiff had admitted that the employer wanted all of its salespeople to meet his new goal and “the median age of the company’s salesmen was 55; all were over the age of forty, and half were older than” the plaintiff. Moreover, merely because the plaintiff was good at certain aspects of his job should not have obviated the employer’s concern with his inability to generate new sales in the last three years. Nonetheless, the case was remanded to a jury trial.

Insomniacs can read the court’s decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/5/2008/2008-ohio-6444.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.