Yet Another Example of the Importance of Documenting Performance Issues

Bernadette Hunton
Bernadette Hunton

A case decided this past week in the United State District Court for the District of Maryland highlights the importance of documenting an employee’s (non-discriminatory) performance issues at the time they occur. Ward v. Columbia Bank, No. CCBC-16-3606 (D. Md. 2/2/18).  Plaintiff Ward began working for Columbia Bank in 1999, and was promoted to branch manager five years later.  In 2012, her branch’s overall performance began to decline.  Despite the decline, Ward’s personal evaluations reflected that she was consistently meeting expectations for years 2010 to 2013.

In 2014, Ward took five weeks off work for Family and Medical Leave Act (FMLA) leave.  Her performance rating that year was reduced to “meets most expectations” and her evaluation reflected that Ward’s “considerable” amount of time off “impacted her overall results.”  Around the same time, a decision was made to consolidate Ward’s Bank branch with a nearby branch.  Ward’s position was eliminated and replaced with an assistant manager position.  Although Ward applied for the position, the bank selected a 35 year old applicant instead.  Ward was 67 years old at the time.

Ward sued the Bank for age discrimination under the Age Discrimination in Employment Act (ADEA) and retaliation under the FMLA.  Denying the Bank summary judgment on both claims, the Court found that the Bank’s proffered reason for Ward’s termination– her poor performance– could be viewed as a pretext for discrimination.  Significantly, despite the branch’s decline in performance beginning in 2012, there was no evidence of problems attributable to Ward until 2014, the year she was terminated.  Moreover, comments that Ward received a lower rating for taking time off suggest that her termination could have been related to her taking FMLA leave.  It’s now up to a jury to decide whether that was actually the case.

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