Performance disagreement didn’t show replacing 58-year-old with 30-year-old was pretext
By Marjorie Johnson, J.D.
Though a 58-year-old administrative employee was replaced by a 30-year-old coworker after being discharged by her new supervisor for purported performance deficiencies, she failed to defeat summary judgment on her age bias claim. Her general disagreement about her job performance and attempts to explain why her poor performance was excusable didn’t establish that the decision to fire her for incompetency was pretextual, a federal district court in Mississippi ruled in dismissing her ADEA claim on summary judgment (Walls v. Pontotoc Health Services, Inc., March 14, 2017, Aycock, S.).
The employee worked as an administrative assistant at a hospital for about eight years. Though her supervisor insinuated that he was happy with her as an employee, he also testified that she allowed personal issues to distract her from her job. He also consistently gave her the second lowest possible ranking regarding quality of work in her job evaluations.
Performance issues. In April 2014, the supervisor disciplined the employee for prematurely informing a nurse practitioner that her position was going to be eliminated after learning this confidential information though her job responsibilities. She claimed that she knew she was not permitted to share this information but that she “felt compassion for her,” as a single mother. As a result of the incident, the supervisor advised that further breaches would result in termination and issued her a mandatory compliance plan, which she successfully completed.
The supervisor retired later that year, and his replacement (the employee’s new supervisor) called her into a meeting to discuss her performance issues and purportedly called her a “troublemaker and a liar.” The issues that the new supervisor brought up with the employee included her general attitude, her inability to prepare legible copies for an important meeting, accidentally sharing confidential information with an unintended recipient via email, failing to maintain personnel files, spreading rumors and instigating conflicts, scheduling meetings too close together, and a general failure to perform necessary administrative clerical duties. The supervisor also complained that she frequently informed her of her opinions of others and rumors regarding various directors and employees.
The supervisor claimed that as a result of observing these behaviors, she reviewed her personnel file—which revealed her recent poor performance reviews—and decided to terminate her based on her incompetency. The employee, on the other hand, argued that the new supervisor mischaracterized her mistakes and provided specific explanations for why she should not be blamed for certain incidents. She also claimed that the supervisor favored her 30-year-replacement because she was younger.
“Qualified” despite poor reviews. Finding that the employee made out her prima facie case, the court rejected the employer’s assertion that she was not was not qualified since she did not perform at the expected level, as shown by her poor performance reviews and errors after her new boss came on board. However, as the Fifth Circuit has reasoned, placing an employee’s “qualifications” in issue at both the prima facie case and pretext stages of a termination case is an “unnecessary redundancy.” Thus, because a plaintiff can ordinarily establish a prima facie case by showing that she continued to possess “the necessary qualifications for his job,” the issue of her job performance was reserved for the pretext analysis.
Disagreement about job performance didn’t show pretext. In an attempt to show pretext, the employee attempted to show that the proffered explanation for her discharge was false and that her new supervisor favored her younger replacement since the two would often “amicably discuss” interior design. She also argued that her first supervisor gave her overall satisfactory ratings, and that a former coworker claimed he was not aware that she had performance problems. However, he did not work with her directly.
Arguing that the complaints about her were “frivolous and petty,” the employee claimed that her new supervisor mischaracterized her mistakes. For instance, in response to the supervisor’s complaint that she couldn’t make legible copies and sent emails to incorrect recipients, she claimed the copiers were unreliable and had been given an incorrect list of email recipients. She also disputed whether a personnel file problem was her mistake, and asserted that she was not trying to gossip or create friction in the work place. She also pointed to an unemployment agency determination that the hospital had not demonstrated that she was discharged for misconduct.
Younger replacement not enough to show bias. However, while the employee harbored general complaints about her new supervisor’s treatment on a personal level, she failed to show that age was the but-for cause of her termination. She failed to show she was treated less favorably than similarly situated younger coworkers or that the proffered explanation for her discharge was “unworthy of credence.” Moreover, she didn’t dispute her poor performance but instead rather attempted to explain why it was excusable in her situation.
In sum, other than her general disagreement regarding her job performance, the employee’s only evidence of discrimination was that she was replaced by someone substantially younger. While this helped her establish her prima facie case, standing alone it was insufficient to establish pretext. Furthermore, a dispute in the evidence concerning job performance did not provide a sufficient basis for a jury to infer that the proffered justification was unworthy of credence.