When an employer points out actual performance problems, it’s probably not a pretext for discrimination


I’ve seen my share of lawsuits in which plaintiffs use discrimination as an excuse for the performance issues that led to their termination of employment. Although. I have yet to meet a plaintiff-employee whom the defendant-employment can convince to dismiss his discrimination lawsuit because there was no discrimination to begin with.

This seems like a lawsuit that should have been dropped sooner.

The plaintiff had been an anesthetist since 1976 and began working for the defendant, a hospital, in 2014. He has multiple disabilities. First, he acknowledges using a walker due to knee pain while working at the hospital. Second, he has hearing loss and stated that he wears hearing aids.

The hearing loss interfered with the plaintiff’s work. He appeared to have trouble hearing alarms going off during surgery. At least one coworker received questions from patients and their families about the plaintiff’s inability to hear.

The plaintiff admitted that nurses questioned him about alarms going off, but he claimed he was ignoring false alarms.

Other times his performance suffered for whatever reason. A hospital administrator testified that a doctor told him three or four times that the plaintiff had provided patients with insufficient anesthesia.

Another time, the plaintiff had trouble intubating a patient. It got bloody and endangered the patient. The plaintiff bungled it further when he overstepped his role by discussing it with a patient’s family.

And that was the last straw. Word got up to the owner of the hospital, who had never previously met the plaintiff. Shortly after that, the defendant terminated the plaintiff’s contract.

Then he sued for disability discrimination.

In a situation like this, with no direct evidence of discrimination, the plaintiff bears the ultimate burden of showing that an employer’s nondiscriminatory justification for ending his employer was a mere pretext for discrimination. A plaintiff may demonstrate pretext by showing that the employer’s explanation is unbelievable or downright false.

The plaintiff here denied that he had performance problems. But his “pretext” argument involved merely disputing the defendant’s assessment of his performance. That won’t cut it in court because the issue at the pretext stage is whether the reason for termination was the real reason for termination, not whether the reason was correct. Heck, he admitted to many of the underlying events upon which the hospital claims it based its termination decision — like the alarms, the intubation incident, and speaking with the patient’s family.

Additionally, he acknowledged that hospital employees investigated the intubation incidents and interviewed him—the hospital’s procedures and general concerns cut against pretext.

Even the plaintiff’s testimony that some employees did not have a problem with his work did not negate the testimony of those that did.

Case dismissed.

I’m not sure if there is a way that the hospital could have avoided this lawsuit. The plaintiff seemed determined to blame anyone else but himself here.

But, you can mitigate the risk of following a similar path by documenting performance issues, communicating them to employees, and following your policies and procedure (e.g., progressive discipline if you have it) so that an eventual termination of employment is near bulletproof.

Following these steps will lead employee-rights attorneys who do their due diligence to pass on these potential clients.

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