How Employers Can Do Everything Right

University Medical Center in Lubbock won a big victory in an age discrimination case by doing everything right (suggesting to me that they followed the advice of their employment lawyers). Employers can learn eight important lessons from the Fifth Circuit Court of Appeals decision issued in the case of Salazar v. Lubbock County Hospital District d/b/a University Medical Center (opinion issued December 7, 2020).

Age discrimination cases are difficult for employers to win because the elderly make very sympathetic plaintiffs and the judges and jurors themselves are often older. But this case gives a blueprint to managers of how to dispassionately and carefully handle the termination of a poor-performing employee.

The allegations that plaintiff Rosemary Salazar asserted in this case sound really bad for the employer in an age-discrimination claim. Salazar had worked at the hospital for 27 years before she was fired in 2017 for poor performance and failure to change her behavior. She was 57 years old at the time of her termination and alleged not only was her firing discriminatory, but also that the same supervisor in her department fired three other long-time employees who were over the age of 60.

Salazar also claimed that she had been given good performance evaluations and that she had “received numerous raises for her job performance.” Finally she said that the employer did not follow its own progressive disciplinary policy in terminating her.

How did UMC manage to get a win the summary judgment motion and the appeal in this case? In a word: documentation.

  • UMC collected written employee satisfaction surveys from other employees that showed Salazar’s “disorganization caused scheduling confusion and frustration for many members of the staff.”
  • UMC “made several attempts to convey to Salazar the importance of changing her current practices.” The opinion does not specify if these were verbal or written warnings, but clearly the employer tried to address the performance problems with Salazar head-on rather than sweeping them under the rug.
  • UMC did an annual evaluation in March 2016 regarding Salazar’s job performance in 2015. In it, the employer detailed “areas of concern over her past performance as well as directives for improvement in the future.”
  • UMC did not give Salazar a merit raise after this evaluation detailed her shortcomings. There was no merit pay increase after she was told to improve and failed to do so.
  • The court specifically noted that the case might have gone differently if Salazar had received a flurry of written warnings around the time she was fired. UMC addressed problems timely as they arose and had documentation going back many months before the employer took the last step of firing Salazar.
  • Importantly, Salazar did not allege that ageist remarks had been made by management employees. That implies that UMC was doing a good job training its supervisors and/or addressing any bigoted remarks as soon as they occurred.
  • UMC had a well-written discipline policy. The court said that UMC didn’t have to follow its progressive disciplinary policy exactly because they had included some wiggle room in the policy (using language like, “the levels of discipline are recommendations. Management reserves the right to impose the level of discipline deemed appropriate for the specific set of circumstances”). The court concluded, “UMC’s digression from the terms of its policy is therefore of little value to our analysis.”

It helped in this case that Salazar presented little more than her own self-serving testimony about what a high-performing employee she was, while the employer had reams of paper showing she was not. But that is often the case in employment disputes. It is short-sighted for employers to give away this advantage by failing to document employee performance problems well.

Eight lessons on doing everything right for any Texas employer to take from this case:

  1. Do not allow your managers to make derogatory comments or jokes about an employee’s age (or race, religion, national origin, citizenship, sex, sexual orientation, gender identity, pregnancy, disability, or veteran’s status). I cannot think of any managerial circumstance in which the age of an employee over 40 needs to even be mentioned.
  2. Talk straight with any poor performer about what he/she is doing incorrectly. Communicate your requirements for employee to resolve those problems.
  3. Document those verbal conversations at the time they occur. Papering a problem long after the fact always looks sketchy in a discrimination case.
  4. If verbal warnings do not fix the problems, use written warnings that the employee’s job is in jeopardy (following the adage that a termination for poor performance should never come as a surprise to an employee).
  5. Use annual evaluations. These should not only complement an employee’s good performance areas, but also carefully spell out those items that have to be improved.
  6. Get written employee surveys or 360-degree performance evaluations on supervisors. These are especially useful if a supervisor is not managing his/her staff well.
  7. DO NOT give merit raises to anyone who has been given a warning or an evaluation that says they have uncorrected performance deficiencies. Even a small merit raise will be interpreted by a court and/or jury that the employee is considered a good performer at the time of the raise.
  8. Make sure you have well-written employment policies. Your progressive discipline policy must give the employer some discretion when the behavior merits skipping disciplinary steps.

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