Does anything in this scenario sound familiar to you:
Sally began work as a Customer Service Representative with Brilliant Business Inc. on October 3, 2016. Linda, her manager received complaints from customers early on, that Sally was abrasive and did not handle their questions or complaints satisfactorily. Sally has gotten into arguments with co-workers. Two of them asked that their cubicles not be near hers. On October 4, 2017 Linda gave Sally her annual performance review. On a scale of 1 -5, with 5 being the best, Linda rated Sally anywhere from 3 to 3.9 regarding the different core functions, listing all Sally’s positive points. Linda also said that Sally needed to improve her manner with customers and co-workers. Not wanting to be overly negative however, Linda also said that Sally was an asset to the company and that she looked forward to continuing to work with her.
About two months ago, Linda heard Sally on the phone yelling at a customer. A mail room clerk told Linda that Sally berated him for mistakenly putting mail addressed to her in the wrong mailbox. Linda spoke with Sally. Sally then turned on her, attacking her abilities and performance as her manager. Linda began having thoughts of firing Sally. Four weeks later, Sally told Linda she has been diagnosed with breast cancer and requested FMLA leave. While Sally was out on leave, Linda reviewed Sally’s work, and her emails. Linda found additional instances of abusive communications with customers and co-workers, and evidence that Sally had, unbeknownst to Linda, left work early on several occasions and lied on her timesheets (Sorry, we don’t have time to get into those details here.) Brilliant’s in-house counsel is concerned that firing Sally could get it hung up in FMLA and ADA claims. How can that be? Can Brilliant anything about it now? That’s our topic this week, so let’s see what can learn…
(image from sportbbc.info)
While there are a few things wrong with this scenario, I want to focus primarily on the conduct and performance issues and the annual performance evaluation. Used properly, a performance evaluation lets the employee know where s/he is doing well and where s/he needs to improve. It is also part of an employer’s documentation if any problems do arise, and can be effective in defending against any type of discrimination/retaliation/wrongful termination claim.
While Linda did state that Sally needed to improve her manner with customers and co-workers, she did not provide any specifics. The evaluation does not say exactly what is wrong with Sally’s treatment of customers and co-workers, nor does it give any concrete suggestions or goals for improvement or a timeframe in which it must occur. There is no plan to facilitate improvement or address the issues. Since the evaluation appears to be fairly positive overall, any assertion by Linda that she fired Sally due to misconduct or poor performance may be suspect.
Wait a minute. Sally, a Customer Service Representative, is abrasive to customers. Her boss and her co-workers have witnessed it. Co-workers have also complained and don’t want to sit near her. There is also evidence of possible timesheet fraud. On the other hand, Sally has exercised her rights under FMLA, and may also be protected under the ADA or an even more employee-friendly state law prohibiting disability discrimination. Sally can probably argue that her performance evaluation shows that Brilliant had no signficant problems with her prior to her leave and that these reasons for firing her are a pretext and that the real motive was retaliation for exercising her FMLA (and maybe ADA) rights. But…but…these problems arose before Sally asked for leave. But the performance evaluation does not indicate a serious problem, and there appears to be little to no other documentation of one either. You know how they say timing is everything? If I were Sally, I’d also argue that the timing is suspicious. Brilliant might try to get the case dismissed based on all the performance and conduct problems, but guess what? A court might agree with Sally. and allow the case to go forward. That’s what happened in Johnson v City of Tyler. (Admittedly in that case, the employee had years of stellar performance evaluations, was first demoted when she got sick and terminated not long after returning from leave, but you get the point, right?)
If you can relate to any of this scenario (admittedly a bit exaggerated and oversimplified), here are some takeaways:
- Don’t rely only on performance evaluations. Discuss performance or conduct issues with the employee, sooner rather than later, take appropriate disciplinary measures and document everything. If the issue is sufficiently concerning, don’t wait until the next annual performance review;
- Positivity is nice, but glossing over problems in a performance evaluation, helps no one. Be truthful. State clearly and specifically what areas need improvement. Most employees want to perform well and ultimately appreciate constructive feedback;
- Include specific goals within a reasonable time-frame;
- Follow up. Monitor for any changes, positive or negative, and document what you find;
Had Linda and Brilliant taken at least some of these steps, they might have been able to terminate a problem employee without having the worry of an FMLA retaliation or discrimination claim. OK, that’s all I’ve got for now. Stay cool!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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