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When performance lags, a discrimination claim comes a calling

July 23, 2015

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

When the writing is on the wall for employees, they generally know it.  And when the company changes its processes and methodology for work, tenured employees tend to have a more difficult time adjusting.  So what must management do to integrate tenured employees with new ways of doing  things?  And if those employees do not adjust, what happens if they try throwing a monkey wrench into management’s plans?

David Williams worked in Fruit of the Loom’s (FOL) Internal Audit Department from April 1983 through June 1998, and then again from March 2007 until FOL terminated his employment on December 31, 2011. As the senior manager of internal audit, Williams’s primary responsibilities were assisting with the Office of Foreign Asset Control (“OFAC”) compliance program to ensure that FOL did not trade with any prohibited foreign entities, and developing and conducting licensee audits.  His work required overseas travel and audits could last anywhere from five hours to 600 hours.  His performance was rated good throughout his time, never receiving negative comments.

In 2009, after a review of its audit practices by Ernst & Young, FOL started to change its audit methodology.  Williams’ manager noted that under the new requirements, Williams’ performance was starting to lag. In his 2009 performance appraisal, Williams’ supervisor stated that he “need[ed] to accept more responsibility going forward and improve his management skills to plan, staff and evaluate engagements, independent of management, in order for the department to achieve its objectives.”  Williams got an overall performance evaluation of “Meets Objectives.”

A new senior manager then came in to change the way the department did audits.  When Williams’ supervisor and the new manager discussed Williams’ performance, the supervisor stated that Williams did not demonstrate an understanding of what he was being asked to do, and that he (the supervisor) spent a lot of time reviewing or redoing Williams’ work. 

Now the monkey wrench.  In 2011 Williams informed his boss that his wife had been diagnosed with

Wegener’s Vascular Disease, which weakened her immune system and made her very susceptible to contracting other diseases.  Williams had mentioned his wife’s rare disease at work before, but had never requested an accommodation. But now he refused to go on a scheduled audit trip to Central America, stating that he could bring back something that could make his wife sick. FOL HR followed up with the paperwork and accommodated Willimams’ FMLA request. He did not go.

Williams’ 2011 performance review showed him as “needs improvement.”  His supervisor put him on a 60-day performance feedback plan, essentially a first warning/performance improvement plan (PIP).  At the end of the 60 days, Williams did not meet expectations. He then was placed on a 90-day performance improvement plan, the equivalent of a final warning.

FOL offered Williams an alternative to the PIP: he could transition out of FOL and receive seven weeks’ compensation.  Williams chose to remain at FOL and try to make the required improvements, stating that he could not leave FOL because he needed to keep his medical insurance. 

A little while afterwards, the department was reorganized and Williams lost his job.  FOL offered Williams thirteen weeks of severance pay and the option to continue working at FOL through December 31, 2011 which would allow Williams to receive FOL’s 2011 Management Incentive Plan benefit, in exchange for a release. Williams refused and filed a charge with the EEOC for discrimination based on association with a disabled individual.  The EEOC reviewed the case and issued a right-to-sue letter.

Williams sued and at the trial level, the case was dismissed in Summary Judgement in favor of FOL.

On appeal the Sixth Circuit Court of Appeals affirmed the lower court’s decision.  First, the court disposed of the ADA claim.  For an ADA association claim, the injured party has to show that an employer was “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”  Williams failed to meet that burden. There was no evidence that his supervisor’s reacted in an adverse way when he brought up his wife’s condition and his need to keep his medical insurance; or evidence that his poor performance was related to his caring for his wife.

With respect to the age discrimination claim, Williams failed to show that FOL replaced him with a younger employee.  The only evidence he presented was hearsay that some employees were trained to do his work. He provided no actual proof. 

The takeaway from this case is that if an employer changes the way it does business and employees neither buy in or catch on to the new processes, the employer should not be afraid to make changes, even when the employee tries to stymie the process.  As Peter Tschanz of Barnes & Thornburg points out in this case, for employers to understand “how easy it is for a plaintiff to drag an employer into drawn out litigation. Where an employer has knowledge of a potential associational claim, it needs to be extra vigilant in documenting its legitimate, non-discriminatory business reason for the adverse employment action at issue.”

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