Termination Upheld Due to Alleged Performance Issues

By John T. Ellis March 16, 2021
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A terminated employee carrying a box of personal items out of the office

A plaintiff failed to disprove an employer's alleged performance-related reasons for firing her, and the 5th U.S. Circuit Court of Appeals dismissed her age-discrimination claim.

The plaintiff was employed as a respiratory therapist by University Medical Center, for 27 years. In 2017, the center terminated the plaintiff, then 57 years old, for poor work performance. The plaintiff sued the center for age discrimination, alleging that she and several other older employees were fired and replaced with younger respiratory therapists who were paid at a lower rate. The plaintiff also claimed that the center never issued her any performance counseling or other warnings about her work performance.

When the center moved for summary judgment, the plaintiff and the center agreed that the plaintiff had met the initial burden of proof on her age-discrimination claim and that the center had presented a legitimate, nondiscriminatory reason for termination. The district court only addressed one issue—whether the plaintiff had presented sufficient evidence to show that the center's performance-related reasons for her termination were untrue and that the center had actually fired the plaintiff due to her age.

Through her own statements, the plaintiff tried to show the center's reasons for her termination were false. The plaintiff argued that she received merit pay increases, that the center terminated other high-earning older employees and that the center departed from its regular disciplinary processes during her termination. The district court found in favor of the center.

On appeal, the 5th Circuit ruled in favor of the center, finding that the plaintiff had to do more than simply dispute the center's assessment of her performance to present her case to a jury. The plaintiff's last merit pay increase was before the center indicated that her performance issues began, and the evaluation that accompanied that merit increase noted performance shortcomings. The plaintiff's claims that the center terminated other older employees in 2017 were unsupported by any evidence, either from the center or from the employees themselves.

The center submitted evidence of the plaintiff's performance issues, including multiple evaluations and satisfaction surveys. The center also showed that its progressive discipline policy specifically reserved the right to depart from regular procedures when appropriate. The plaintiff's statements alone were insufficient to overcome this evidence.

Salazar v. Lubbock County Hospital District doing business as University Medical Center, 5th Cir., No.: 20-10322 (Dec. 7, 2020). 

Professional Pointer: Regular, consistent and clear documentation of performance shortcomings can carry great weight in court. Well-drafted workplace policies can carry similar weight. When an employer documents performance issues appropriately, a former employee will need more than conclusory, self-serving statements to successfully prosecute a case against the employer.

John T. Ellis is an attorney with Ufberg & Associates LLP, the Worklaw® Network member firm in Scranton, Pa.

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