Suppose you are a Department Head at Larger-than-Life Sciences, Inc. Rhonda the Researcher is one of your direct reports. Rhonda is just not performing well at her job. In fact, you are not sure she is really qualified. Your annual performance review showed serious problems. You then put Rhonda on a Performance Improvement Plan. Rhonda protests, but says she’ll do better. Three months pass. Rhonda’s performance does not improve, and you make that known on a post-PIP review. Now you have another problem. Rhonda files an EEOC charge, alleging racial discrimination. What? This wasn’t about race at all. It was solely about performance. Rhonda brings up a time two months ago, when another employee in your department made a racially insensitive comment and she reported it to H.R. Rhonda says you are retaliating for her prior complaint. What could happen now? Read on…
(image from iwillteachyoutoberich.com)
Can this really happen? It can and it did in a similar case, Alkhawaldeh v. Dow Chemical Company, 5th Cir., No. 16-20069 (Mar. 15, 2017). There are slight differences (including the lack of really hokey names, unlike my hypothetical). Mr. Alkhawaldeh was a functional scientist/functional leader at Dow Chemical Company. He received a 1 out of 5 on his annual review in October 2009. (Yes, 1 is the lowest and 5 is the highest rating. Ouch!) Mr. Alkhawaldeh protested, but to no avail, and he was placed on a PIP. One month later, he complained to H.R. that his some co-workers made some racially offensive remarks to him, based on his Arab descent, dark skin and being from Jordan and that a trainer refused to accommodate his dietary needs. He claimed that the negative evaluation and PIP were retaliation for his complaints. (Yes, I know he complained a month after the negative performance evaluations.) In April, 2010 he filed an EEOC charge alleging discrimination under Title VII. In the summer of 2010 he emailed Dow’s Chairman alleging retaliation.
Shortly after that email to Dow’s chair, Mr. Alkhawaldeh was transferred to another department with a different supervisor. That supervisor after two months of evaluation, also found his performance lacking. Consistent with Dow’s policies, it convened a committee, which further evaluated his performance. The committee found him to be insubordinate, and, among other things, lacking in basic mathematical and engineering skills needed for his position. Dow therefore terminated his employment in October, 2010, and Mr. Alkhawaldeh filed another EEOC charge in November 2010, again alleging discrimination and retaliation. The EEOC determined that Dow retaliated against him, so Mr. Alkhawaldeh sued. That’s where his luck ran out. The District Court for the Southern District of Texas, and the Fifth Circuit Court of Appeals disagreed. Mr. Alkhawaldeh failed to show that he was treated worse than other similarly situated employees. The court(s) also reasoned that “no reasonable fact-finder” could conclude that he wouldn’t have been fired had he not made his internal complaints. (Of course, it doesn’t help Mr. Alkhawaldeh that he made his complaints a month after his 1-out-of-5 performance rating, or that his new supervisor also found his performance to be sub-par.)
So what did Dow do right? The short answer: a lot! Let’s break it down, though.
First, Dow conducted regular reviews and immediately documented all performance issues. Some employers may provide regular performance reviews but hesitate to say anything negative, even when they notice some performance issues. Later, when it is clear that the issues cannot be ignored, those employers have to explain why the performance reviews are positive — or least why they don’t indicate the performance issues they are now alleging.
Second, Dow did eventually respond to Mr. Alkhawaldeh’s racial discrimination allegations by moving him to a different group with a different supervisor. Of course it took an email to Dow’s chairman, but it was a response. By moving him to a different group, Dow: a) got him away from the supervisor and co-workers he claimed to be causing him problems; b) and had someone independent of the first supervisor reviewing his performance and making an independent evaluation.
Third, Dow continued to monitor Mr. Alkhawaldeh’s performance, and acted in accordance with its established policies. In other words, Dow made every effort to treat Mr. Alkhawaldeh the same way they treated similarly situated employees.
Fourth, Dow followed what is perhaps the cardinal rule in HR: Document, document, document! In so doing, Dow was able to show that its actions were based on performance alone.
That said, nobody is perfect and there are/were some things that Dow might have been able to do better. First, it appears that Dow’s H.R. Department may not have taken any definitive action with respect to Mr. Alkhawaldeh’s original allegations until months later, when he emailed Dow’s Chairman. (I say may not have, because I only have access to facts enumerated in the Circuit Court opinion, and it is not clear what was done between November 2009 and the transfer in July 2010.) In addition, Dow would have known by then that it was facing an EEOC charge. (I hope Dow did something during that time. Based on the available facts, I just don’t know.) Assuming that Dow took no significant action between November 2009 and July 2010, that was a big mistake that could have cost them. If so, Dow may have caught a break there. Second, if Mr. Alkhawaldeh’s performance was deficient enough to call his qualifications into question, Dow’s pre-employment screening may leave room for improvement. That of course is a whole other discussion for another time. Let’s leave it here for now…
OK, let’s stop there for now. See you next week!
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