- Blog post
Inconsistent employee performance reviews doomed layoff
Mistakes documented, but not included in employee performance reviews
Are overworked managers racing their way through an employee performance review without taking time for accuracy and thoroughness? Watch out!
Many courtroom decisions boil down to whether or not an employee’s most recent performance review backs up the business decision to terminate. How would your firm fare in a case like this?
Cash-strapped employer looks for a solution with an RIF
James Mangrum was a 58-year-old inspector at a company that designs and builds custom machinery. He shared inspection duties with 46-year-old Malcolm Russell.
When the company was struggling through a difficult financial period, Mangrum was laid off in an RIF – and Russell took over his job. Although Russell was in the same protected class as Mangrum, He suspected his age factored into his dismissal. And he filed an age-discrimination lawsuit.
The employer went to court stuffed to the gills with documentation showing why it had chosen Mangrum over Russell for a layoff: specifically, a dozen warnings Mangrum had received about poor performance and sloppy work over a four-year period – some quite serious.
What’s more, according to the employer’s testimony, Mangrum had difficulty communicating with his supervisors. The decision to keep Russell and lay Mangrum off had nothing to do with Mangrum’s age, and everything to do with his performance.
Sound like a slam dunk? It did to us. That’s why we were surprised to learn the court found in favor of Mangrum.
Tipping the scales was the employee performance reviews
Do workers over age 40 have special rights? No. Employers may fire them for any legitimate business reason – just as they may fire members of other protected classes.
But as this case reminds us, in an RIF, a plaintiff doesn’t have to show that the employer flat-out lied about the business reason. Even if age is merely a factor that tips the scale in favor of a layoff, the layoff is unlawful and the company is liable for discrimination.
In this instance, as in many, it boiled down to Mangrum’s allegedly poor employee performance reviews. And that’s where the employer’s case fell apart.
From the employer’s perspective, business conditions forced a consolidation of the two inspectors’ jobs. Management had to choose. And it based its decision on Mangrum’s employee performance reviews. As evidence, the employer showed the court 12 instances, dating from 1998 through 2002, documenting Mangrum’s shortcomings. Among them: He’d let shoddy materials pass inspection, miscalculated vital numbers, neglected mandatory inspection functions and failed to complete paperwork satisfactorily.
In court, Mangrum presented his most recent employee performance reviews had quotes like “did a good job of inspecting with very few errors.” According to the firm’s most recent records, Mangrum had successfully completed an in-house course in Total Quality Management, receiving the grade of “A.” He received the highest rating possible for “dependability and attendance.” And, according to Mangrum’s boss, Mangrum was “extremely dependable, being to work on time. Will stay as required. For those things that must happen, you can depend on him.”
Mangrum’s argument: Sure he’d made mistakes. He was only human. But the employer had blown his errors way out of proportion, after the fact, using the errors to its own advantage because they wanted to get rid of him.
Thorough employee performance reviews
Even in an age of employment “at will”, be wary when firing someone who recently got a glowing review. When judges look at a terminated employee’s record, they tend to look at the most recent employee performance reviews. If those appraisals contradict the past, you could get stung in court.
We’ll never know whether Mangrum’s supervisor didn’t want to hurt the poor guy’s feelings or if he just didn’t have time to include all relevant information in the appraisal. Either way, the employer took it on the chin.
This case is a reminder for managers to be honest and thorough when writing employee performance reviews.
Cite: Mangrum, Steinweg, Guhl, and Thibideau v. Morrison Timing Screw Co., U.S. District Court, Northern District of IL, Eastern Division, No. 03-C 3891, 8/3/04. HR 3.5
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From my perspective as a labor arbitrator, I would concur with this result. As a general proposition, labor arbitrators who are faced with performance related controversies, tend to attach greater credibility to performance evaluations conducted just prior to or contemporaneous with the decision to lay off, or dismiss. In this regard, recency becomes a critical factor and the older the evaluation Record evidence, The more likely it is that the older evaluation record can be offset by more recent and higher performance evaluations..