Legal Clinic

Terminating Poor Performers

A poor performer's recent complaints about potential bias should not prevent a company from terminating his employment as long as there are legitimate, nondiscriminatory reasons for the action. But it's even better if the organization has written documentation that shows the adverse action was agreed to prior to the complaints being made.

Monday, August 22, 2011
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Question: We made a decision to fire a severely underperforming employee at the end of the month. Recently, however, he began making general statements around the office to the effect that he feels his female supervisor is more critical of his work and is discriminating against him because he is the only man in his group. Can we still go ahead with our decision to fire him or should we wait since he has now made this new complaint? 

Answer: Simply put, yes -- the employer should certainly follow through with its decision to terminate this underperforming employee. However, given the fact that this employee has begun complaining (as I understand from your question after the decision to fire him was made), his separation should be handled carefully and with the consult of legal counsel. 

The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 prohibits employers from taking any adverse action against employees on the basis of their having engaged in "protected activity." Civil Rights Act of 1964, 42 U.S.C.A. § 2000e?3(a).

Thus, in order to establish a prima facie case of retaliation -- which is what this employee would likely allege -- the employee would need to demonstrate that he engaged in protected activity, that the employee took adverse action and that there is a causal connection between the adverse action and the protected activity. Johnson v. Washington Metropolitan Area Transit Authority, 355 F. Supp. 2d 304 (D.D.C. 2005).

While the description of the general statements made by this employee around the office may not rise to the level of formal complaints, employers should recognize that such statements may nonetheless qualify as protected activity (under the first prong) depending on what was said, how and to whom the statements were made, and any complaint procedures in place. See Jeseritz v. Potter, 282 F.3d 542 (8th Cir. 2002), Revis v. Dyncorp Technical Services, Inc., 292 F. Supp. 2d 733 (D. Md. 2003), Mondaine v. American Drug Stores, Inc., 408 F. Supp. 2d 1169 (D. Kan. 2006). 

As such, it is wise for employers to err on the side of caution and assume that a court may construe the term "protected activity" liberally to encompass such general statements.

Under the scenario posed in your question, terminating this employee would easily satisfy the second prong of a prima facie case for retaliation, which requires the demonstration of an adverse employment action taken against the employee. 42 U.S.C.A. § 2000e-3(a); Burlington Northern and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (U.S. 2006); Kipnis v. Baram, 949 F. Supp. 618 (N.D. Ill. 1996). 

The third prong of a prima facie retaliation case requires the employee to demonstrate a causal connection between his protected activity and the subsequent adverse action. That is, the employee must establish, through direct or circumstantial evidence, that his statements regarding alleged discrimination served as a motivating factor in his employer's decision to terminate him. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002). 

Notably, it is at this prong where retaliation cases are usually won and lost. Most often, a causal link can be inferred where there is close temporal proximity of the adverse action to the protected activity. Id.

However, it should be noted that an adverse employment action in close proximity to the exercise of protected activity is not necessarily determinative, particularly where circumstances indicate another explanation for the adverse action. Clark County School Dist. v. Breeden, 532 U.S. 268 (2001); McMillan v. Massachusetts Soc. for Prevention of Cruelty To Animals, 140 F.3d 288 (1st Cir. 1998), reh'g and reh'g en banc denied, (June 16, 1998); Swanson v. General Services Admin., 110 F.3d 1180 (5th Cir. 1997). 

I have surmised, based on my general reading of your question, that your company's decision to terminate this employee predates the employee's statements concerning his supervisor. If so -- and better yet -- if the employer has contemporaneous documentary proof to that effect, (i.e., an email or memo to file, etc.) the employee will likely be unable to establish the required causal connection between his termination and the alleged "protected activity." 

Further, by demonstrating that the decision to terminate based on poor performance was made prior to any of the employee's alleged complaints of discrimination, the employer will likely be able to establish that a necessary component of causation -- knowledge of the protected activity -- is lacking. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 148 Ed. Law Rep. 735 (2d Cir. 2000). See also Thomas v. City of Beaverton, 379 F.3d 802 (9th Cir. 2004).

The most effective way to demonstrate lack of knowledge is by formulating a chronology composed of dates on notes from meetings or emails memorializing the decision to terminate the employee, as well as any documents reflecting the employer's knowledge -- or lack of knowledge of the employee's complaints. 

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As a note, an employer can be made aware of protected activity through the imputed knowledge of supervisors. Enstrom v. Beech Aircraft Corp., 712 F. Supp. 841 (D. Kan. 1989). 

If you do not have documentary proof reflecting that the decision to terminate this employee predates his alleged complaints -- while you are not required to do so -- you may want to consider allowing some time to pass before moving forward with the termination if at all possible in order to place some temporal distance between the termination and the alleged "protected activity."

Regardless, though, if termination is legitimately called for, the employer should move forward with its decision even though the appearance of temporal proximity may be a concern. 

To do otherwise would be detrimental to the company in the long run, as it would set a poor precedent and give other employees the impression that complaining is one way to stop the disciplinary wheels from turning. 

In addition to having a detrimental effect on workplace morale, retaining a low-performing employee also may invite potential discrimination claims from other similarly situated underperforming employees who were terminated but who don't share the retained underperforming employee's gender, race, disability status, etc. 

When deciding whether and when to terminate, the employer's main focus should be on making sure that the reason for doing so is legitimate and, above all, nondiscriminatory. 

The best way to ensure this is by maintaining complete and up-to-date documentation of personnel decisions affecting all employees. 

For example, employers should always be able to easily point to physical documentation of an employee's performance. Such documentation may take the form of formal written reprimands, or praise/awards, notes of conversations pertaining to discipline, performance reviews or productivity reports. 

Employers should also be sure to include any notes, agendas or documents related to meetings or discussions at which employees are reviewed, and at which any personnel decisions are made. Such documents should always be dated and signed. 

By implementing these best practices, employers may better limit their liability if and when they are faced with unlawful-retaliation claims. 

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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