Performance Reviews Help Defeat ADA, ADEA and FMLA Claims

By G. Bryan Adams III August 5, 2020
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Businesswoman in wheelchair at her desk

An employee's well-documented performance deficiencies supported the employer's elimination of her position and defeated her Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA) and Family and Medical Leave Act (FMLA) claims, according to the 6th U.S. Circuit Court of Appeals.

The plaintiff worked for Kelsey-Hayes Co. as an administrative assistant and senior executive secretary to a company vice president until her termination in January 2016. During that time, the plaintiff received mixed reviews in her performance evaluations due to inattention to detail, absenteeism, scheduling problems and generally poor job performance. In 2015, Kelsey-Hayes was acquired by a German company. The new company then eliminated some positions, including those held by the vice president and the plaintiff. The plaintiff applied for several internal positions but was not hired.

The plaintiff sued, alleging that her employer failed to rehire her for such discriminatory reasons as a negative perception of her asthma and use of a wheelchair, her age, and the fact that she took leave under the FMLA. The plaintiff asserted claims for discrimination and retaliation under the ADA, the ADEA, the FMLA and two Michigan employment discrimination laws.

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The plaintiff did not have direct evidence, such as discriminatory comments by the employer to prove her case, so she had to rely on circumstantial evidence. Her claims were therefore subject to the McDonnell Douglas burden-shifting proof framework. First, the plaintiff had to establish an initial case of discrimination. The employer then had to articulate a legitimate, nondiscriminatory reason for the employment decision. The plaintiff next had to prove that the employer's stated reason was pretextual or false.

The trial and appeals courts assumed that the first two steps of the McDonnell Douglas test had been satisfied and focused on pretext.

The trial court ruled in favor of the employer, dismissing the plaintiff's claims, and the 6th Circuit affirmed. The appeals court ruled that the plaintiff was unable to establish that the employer's nondiscriminatory reason was false through any of the three available methods of proving pretext.

First, the court noted, the plaintiff's poor job performance was factual, as supported by years of the vice president's written evaluations. The plaintiff's belief that her performance was good was insufficient to establish pretext.

Second, the plaintiff had no evidence that the evaluations did not motivate the decision not to hire her for one of the open positions.

The court added that the plaintiff had produced no evidence of actual discriminatory bias against her.

Brown v. Kelsey-Hayes Co., 6th Cir., No. 19-1040 (May 26, 2020).

Professional Pointer: This case presents a powerful reminder of the importance of documenting an employee's inadequate job performance. Had the employer not had years of written evaluations describing the employee's performance deficiencies, it would have had a far more difficult time establishing that these issues were the actual reason for not hiring the employee for any of the positions for which she had applied.

G. Bryan Adams III is an attorney with Van Hoy, Reutlinger, Adams & Pierce PLLC, the Worklaw® Network member firm in Charlotte, N.C.

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