Court Dismisses Age-Discrimination Claim by Worker with Performance Issues

The 8th U.S. Circuit Court of Appeals upheld the dismissal of age-discrimination and retaliation claims brought by a longtime bank employee. The employee claimed she was terminated either because of her age or in retaliation for notifying an HR employee that she feared age discrimination. But the appeals court ruled that the bank had legitimate performance-related reasons for the discharge.

The plaintiff had been an employee of the defendant, a bank, since 1975. In 2015, the bank introduced a software upgrade. While all department employees received training on the upgrade, the plaintiff requested not only additional training but also someone to sit beside her desk every day to assist her. In July 2015, the plaintiff's supervisor started formally tracking her regular performance issues. She also met with the plaintiff regularly to discuss her continual mistakes, failure to complete assigned duties and need for additional time to get work done.

The plaintiff was put on a performance improvement plan (PIP) in April 2016 and e-mailed HR to say, "I am concerned that my manager is trying to have me fired due to my age." While she completed the PIP in July 2016, she continued to make similar errors throughout the PIP. Shortly thereafter, an error cost the bank $62,000; while the plaintiff was suspected, it could not be proved she was at fault. The plaintiff was tasked with finding out whether any other bank customers were affected by the same issue. She failed to identify two affected customers and gave her supervisor incorrect calculations, along with additional mistakes.

In September 2016, the plaintiff was told she had 30 days to find a new job or would be fired. She applied to jobs within the bank but did not receive an interview for any of them and was terminated in October. The plaintiff sued the bank, claiming that she was discriminated against based on her age and terminated in retaliation for making a complaint of age discrimination.

The district court granted summary judgment to the bank on all the plaintiff's claims, and, on appeal, the 8th Circuit upheld that ruling. The court held that the bank had a legitimate reason for her termination: the performance issues illustrated in, and following, her PIP. The plaintiff argued that a jury could have found her performance had not begun to suffer in 2015 because she consistently got a 3 out of 5 ("solid performance") score on reviews. The court noted, however, that her supervisor included comments in those reviews calling attention to substantial issues with her performance and had also begun to make note of her ongoing performance issues.

The court further held that the plaintiff could not establish the bank's reasons were pretextual. She could not identify any employees who were similarly situated, had failed to establish evidence showing that her supervisor favored younger workers and did not show that the bank's rationale for her termination had changed over time. Accordingly, the appeals court upheld summary judgment on the plaintiff's discrimination claim.

As to the retaliation claim, the court agreed with the district court that the plaintiff could not show that her report of discrimination caused her dismissal. There was no evidence that her supervisor knew of the plaintiff's complaint to HR at the time she was terminated. Moreover, four months had passed between the plaintiff's complaint and her termination, which did not suggest causation.

Finally, the court held that the plaintiff could not establish that the bank's failure to hire her into other positions was discriminatory. Most of the positions she applied for had already been filled. While HR had told recruiters at the bank that the plaintiff was a poor performer, there was no evidence that the hiring managers—who made the decisions not to offer her an interview—had been told the same. Accordingly, the court upheld summary judgment on all claims.

McKey v. U.S. Bank NA, 8th Cir., No. 19-2638 (Oct. 23, 2020).

Professional Pointer: This is a good reminder of the importance of maintaining a detailed disciplinary procedure. The supervisor's careful notation of the plaintiff's regular mistakes—even while giving her review scores that would otherwise indicate satisfactory performance—were instrumental in the bank's ability to produce evidence to defeat the employee's claim of discrimination. Consistent and detailed documentation is the best way to defeat, or even avoid, charges and complaints of discrimination from an underperforming employee.

William E. Parker is a senior associate with Peters, Revnew, Kappenman & Anderson PA, the Worklaw® Network member firm in Minneapolis.