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Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law
monthly newsletter. She is highly regarded for her workplace compliance
training that “clicks and sticks,” because it is practical and
memorable. She is also the coauthor of the American Bar Association’s
bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."
The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the
workforce—from boardroom executives to managers and supervisors and to
hourly employees in union and non-union environments.
Question: Employers often feel cornered when poor-performing employees take job-protected FMLA leave. Can you terminate such employees while they’re out on leave? It often comes down to one question: How well have you documented the poor performance? …
Case in Point: Jerilyn Lucas was hired to be a branch executive officer at a local bank in Wisconsin. While she had 14 years of marketing and sales experience, she’d never run a bank branch. Her supervisor initially gave Lucas a good performance review, but noted that she needed to improve her knowledge in basic branch operations within two months.
A few months later, Lucas’s supervisor began hearing complaints from bank employees that Lucas didn’t understand banking operations, was unavailable to answer questions, came late and left early. In her semi-annual performance review, Lucas was given a “2” out of “5” in staff performance management, branch client services and internal client services. (She did receive high marks for sales.)
Shortly afterward, Lucas experienced stroke-like symptoms and took one month off. Her temporary replacement was Robert Cooper, who had 15 years experience as a branch executive officer. Under Cooper’s leadership, staff morale improved and Cooper had an excellent attendance record.
When Lucas returned to work, three employees sought transfers to other branches. Her supervisor feared that Lucas’s negative attitude, unexcused absences, and lack of banking knowledge would cause “a mass exodus” of employees from the branch. The result: The bank fired her.
Lucas sued for gender discrimination under the Civil Rights Act of 1964 claiming her male replacement, Robert Cooper, was treated more favorably. The bank held up its documentation as evidence that the firing was based solely on performance. (Lucas v. PyraMax Bank, 7th Cir. 8/22/08).
How did the case end … and what lessons can be learned?
The court threw out her claim, as did an appellate court. The court reasoned that Lucas was “repeatedly warned and she fell far short of the company’s expectations,” adding that “The evidence shows that Lucas was not adequately performing her job and her behavior was undermining the branch.”
The court also noted that Lucas could not hold Cooper up as a “similarly situated” male because he did not have the same performance deficiencies and, therefore, their differences in treatment weren’t discrimination.
3 Lessons Learned… Without Going to Court
1. Avoid “walk on water” performance evaluations. When writing a performance evaluation, always keep it balanced as to what the employee is doing well and where they need room for improvement. In this case, such fair evaluations saved the company from the appearance of discrimination because they pointed out the employee’s deficiencies immediately and early on.
2. Provide ongoing evaluations and feedback. Don’t sit back and wait to only conduct written evaluations annually. In this case, the semi-annual performance review showed Lucas’s poor performance continued. The court noted this when determining that termination was justified.
3. Document, document, document. The court could see the evidence of poor performance with documented unexcused absences, late arrivals, early departures and conversations in which she was unable to answer work-related questions. Courts look for proof to place onto the scales of justice and see which way they tip.
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