GableGotwals Employment Lawyers Secure Summary Judgment For Employer On Former Employee's Age Discrimination Claims
Tim Carney and Erin Dailey recently obtained a victory on behalf of an employer in an age discrimination case by a 60 year old employee who was terminated by his employer for poor performance. Roberts v. International Business Machines, Inc., Case No. 11-CV-0040, USDC, Northern District of Oklahoma. The plaintiff in the case asserted that his employment was terminated because of his age, 60, in violation of the ADEA and Oklahoma’s public policy against discrimination, under the rubric of Oklahoma’s so-called Burk tort and the Oklahoma Anti-Discrimination Act. He also alleged that he was terminated in retaliation for allegedly complaining about age discrimination, in violation of the OADA.
The facts were generally as follows. The plaintiff was employed by the company as an application developer, providing support for certain software applications used by one of the company’s customers. His primary responsibility was to respond to “remedy tickets,” electronic notices of problems encountered by the customer. The plaintiff had been previously employed in that same capacity by the customer, but the customer outsourced the work to the company, which hired the plaintiff and others to continue providing the software support beginning in 2006. After he was employed with the company for approximately two years, the plaintiff’s supervisors began to note performance deficiencies, including complaints from the customer regarding the length of time it took him to resolve the remedy tickets and his failure to timely update those tickets to reflect the status of projects. Once these issues surfaced, the plaintiff received an unacceptable performance rating for 2008. His unsatisfactory performance continued into 2009, and he was placed on a 60 day performance improvement plan late in the year. Although his performance improved and he completed the 60 day plan, his performance deteriorated again, he was given another unsatisfactory performance rating, and his employment was terminated in January 2010 for unsatisfactory performance.
In considering the employer’s motion for summary judgment, the court found that the plaintiff had presented a prima facie case of discrimination. Accordingly, the burden of production shifted to the employer to articulate a non-discriminatory reason for its actions. On behalf of the employer, GableGotwals presented evidence of the plaintiff’s lengthy pattern of performance issues, including complaints directly from the customer. We also pointed out that these performance problems were documented in the plaintiff’s performance reviews and elsewhere, and that his performance (while showing temporary short-term improvement) deteriorated justifying termination. The court found that this evidence met the employer’s burden. Thus, the plaintiff was required to present evidence that the employer’s proffered reasons for termination constituted a pretext for unlawful discrimination.
Here is where the plaintiff’s claim failed. While the plaintiff alleged that the employer had treated other, younger employees more favorably than plaintiff, the court found that the evidence failed to support this conclusion because the plaintiff could neither establish that these other employees were similarly situated nor that their performance problems were of the same type or magnitude as the plaintiff’s. Also, while the plaintiff claimed that there was “direct evidence” of age bias in communications between the plaintiff’s human resources managers concerning the plaintiff’s selection for and then removal from a layoff list, the court found that this evidence actually related to the plaintiff’s performance and supported the employer’s position that his performance was the issue, not his age. Finally, while the plaintiff claimed that he noticed older employees “disappearing” from the company, he presented no evidence of any specific individuals, their ages, or their employment circumstances, to support his allegation. Thus, he failed to present a fact question as to pretext.
The court also held that the plaintiff’s claim of retaliation under Oklahoma common law failed as a matter of law, because there was an adequate remedy available to him under the ADEA. The court found that because the plaintiff’s claim under the so-called Burk public policy tort was based upon allegedly protected conduct, rather than status, it may be asserted only if there is no other adequate remedy available. Because a remedy for retaliation was at his disposal under the ADEA, he could not assert a public policy claim.
The court’s decision is a helpful reminder that employers, when considering discipline and termination of employees, should treat similarly situated employees in a similar fashion, and should carefully and accurately document employee performance deficiencies and the counseling and discipline of employees for performance deficiencies. Also, employers should recognize and address deficient performance promptly and progressively through its counseling and disciplinary policies so that, in the event affected employees decide to challenge such actions there is a well-documented record to rely on in defending the claims if subsequent litigation arises.
As part of its employment group, GableGotwals advises employers as to best practices for human resource policies. We also offer human resource and supervisor training to assist employers in effectively addressing workplace counseling and discipline, the importance of accurately and thoroughly documenting employee performance and deficient performance, recognizing and effectively addressing high risk situations, and other types of training.