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.
