Did this guy’s performance really nose-dive? Or did his age motivate his abrupt termination?

noun-cliff-3352339-1024x1024Stop me if you’ve heard this one before.

One of your employees has been with the company for several years. Over that span, they reported to the same manager, who consistently provided positive feedback and good performance reviews. All is well.

Then, the manager leaves.

And there’s a new sheriff in town, err, the employee begins reporting to a different supervisor.

The new supervisor is not nearly as pleased with the subordinate’s performance. A performance memo soon follows. Then, there’s a performance improvement plan. Finally, a termination of employment.

This 180 leaves the direct report flummoxed and suspicious that something nefarious could have motivated their termination of employment, perhaps their age.

These are the broad brush strokes of a Seventh Circuit opinion I read last night. Here are a few other facts that raised the plaintiff’s antennae:

  • The plaintiff received his first negative performance review less than a month after his new supervisor’s arrival, and there was evidence that he decided to “facilitate” the plaintiff’s exit within 25 days at the company.
  • Though the initial performance memorandum purported to allow the plaintiff to improve within 30 days, his new supervisor immediately started looking for a replacement.
  • The company used an outside recruiter who described a candidate about the same age as the plaintiff as “more on the seasoned side.” (The defendant did not hire this older candidate).
  • When the defendant moved the plaintiff from a performance memorandum to a performance improvement plan, along with another employee in the same position who happened to be the oldest at the facility, both received PIPs that were not personalized. Indeed, the defendant used identical language in both, accusing both men of making the same comment that he was “waiting to be walked out.”
  • The new supervisor asked another employee to look for “good examples” to use against the plaintiff as grounds for termination, even though the other employee observed the plaintiff performing his duties as required by the job.

To advance a claim of age discrimination to a jury, a plaintiff must demonstrate that whatever reason(s) the defendant has offered to support an adverse employment action is a pretext for discrimination. Pretext does not require that the plausible facts the defendant presents not be true, only that they not be the reason for the employment decision.

Here, the Seventh Circuit concluded that “such a conclusion is possible given that [the plaintiff] presented significant evidence to establish an inference of discrimination and the material facts relied on by [the defendant] to point in the opposite direction are disputed.”

It shows that the “new sheriff in town” defense is not always a silver bullet to defeating a discrimination claim, especially where the new supervisor appears to have a calculated approach to exiting their direct report.

“Doing What’s Right – Not Just What’s Legal”
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