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Demeanor and communication style, not age, were why supervisor was fired

By Kathleen Kapusta, J.D.

Citing numerous performance reviews documenting issues with an employee’s demeanor and communication style, a written warning for his “argumentative and insubordinate” discussions with his supervisor, his placement on a performance improvement plan due to his “repeated inappropriate feedback,” and a string of complaints against him, the Seventh Circuit found it clear that at the time of his termination, his supervisors did not believe he was performing his job adequately. Nor could he show he was similarly situated to a younger employee whom he claimed was treated more favorably despite being a bully, said the court, affirming summary judgment against his ADEA age discrimination claim. Summary judgment was also affirmed against his retaliation claim (Lauth v. Covance, Inc., July 13, 2017, Bauer, W.).

Hired in 2006 at the age of 54, the second shift supervisor consistently received “Meets Expectations” on his year-end performance reviews. However, his supervisors also consistently commented on his communication style, even warning that if his temperament and communication practices did not change, he might be replaced “with someone who works better with others in the room, across all facets.” A 2011 mid-year review stated that the employee’s “my way” approach was no longer acceptable. During a meeting with the employee to discuss the review, the supervisor purportedly asked him when he planned to retire.

Who’s the bully? That same year, the employee submitted an internal complaint regarding a coworker whom he accused of being a bully. Although he complained of the coworker’s harassment, he specifically noted that it did not relate to unlawful harassment based on any protected characteristic. He also claimed his supervisor had allowed the bullying to continue despite his complaints. An investigation found that the coworker had behaved inappropriately on several occasions and he was placed on a PIP.

EEOC charges. Citing his supervisor’s retirement comment, the employee subsequently filed a charge with the EEOC. In 2012, a new supervisor took over and the employee continued to receive warnings about his behavior. He was ultimately placed on a PIP. He then filed a second EEOC charge. While on the PIP, he learned of an incident involving the coworker he had accused of bullying, and despite being assured by his supervisor that she knew of the incident, he investigated it himself. Several other production workers then complained about the employee’s treatment of them and after an investigation, he was terminated.

He sued, claiming age discrimination and retaliation in violation of the ADEA. The district court granted summary judgment against both claims.

Job performance. On appeal, the Seventh Circuit noted that the employee did not cite any specific examples of conduct or statements by any of his superiors that could raise the inference of a discriminatory motive. Instead, he claimed he performed his job satisfactorily throughout his employment and that the coworker he accused of bullying was younger, similarly situated, and treated more favorably. To the court, however, it was clear that at the time of his termination, his supervisors did not believe he was performing his job adequately. His problematic demeanor and communication style had been consistently documented in his performance reviews, and he was told in 2011 that his management approach was no longer acceptable.

This was followed by a written warning in 2012, which was prompted by an argumentative and insubordinate discussion with his supervisor. And despite being placed on a PIP, he took it upon himself to investigate his coworker, even after his supervisor told him she was handling it. This, together with the late 2012 string of complaints from his shift employees, clearly demonstrated that his employer was not satisfied with his job performance. His belief that those assessments were misplaced and that he was performing his job adequately was not relevant to whether the company had a legitimate, nondiscriminatory basis to terminate him.

Not similarly situated. As to his assertion that he and his coworker were similarly situated but that the coworker was treated more favorably, the court again pointed out that his supervisors consistently indicated his communication style was problematic in every performance evaluation from 2006 through 2012. There was no evidence, however, indicating that the coworker received similar feedback over such a long period of time. To the contrary, there was evidence indicating the coworker demonstrated a willingness to correct his performance problems as he satisfactorily completed his PIP. The employee, however, continued to exhibit problematic behavior even after being placed on a PIP as indicated by the numerous complaints his supervisor received from other employees while he was on the PIP. Thus, the court found that his age discrimination claim failed.

Retaliation. While the employee alleged his employer disciplined and terminated him in retaliation for his internal complaint and EEOC charges, the court pointed out that the internal complaint was not protected activity because it explicitly disclaimed his age as the underlying basis for the harassment. Nor were the negative performance reviews, the written warning, or the PIP adverse actions because he could not show they negatively affected the terms or conditions of his employment.

Thus, the only question was whether there was a causal link between his EEOC charges and his termination. Here, he again argued that because, in his view, his supervisors’ concerns were mistaken or misplaced, their actions must have been retaliatory. The court, however, again pointed out that judgments regarding the fairness of a particular action or the accuracy of an employer’s belief about an employee’s job performance have no place in determining whether the employer acted based on an improper motive. The only question that matters, said the court, is whether the employer actually believed it had a legitimate basis to terminate the employee. Without any evidence, other than his own speculation, to indicate his employer used the litany of complaints and the documented history of his communication issues as a cover for a retaliatory motive, this claim also failed.