As this recent case demonstrates, consistent documentation can be your saving grace in defending a wrongful termination lawsuit, while inconsistent enforcement of rules can be your downfall.
Ramona DeBra worked as a teller for JP Morgan Chase & Company for about 12 years. In her later years at the bank, she worked at two different branches under two different supervisors. Eventually, she began spending the majority of her time at the second branch, which became her primary branch, and that branch manager, Kevin Sexton, became her primary supervisor.
DeBra wasn’t subjected to formal discipline until 2014. Before then, she generally received “meets expectations” performance ratings. However, her supervisors indicated in two of her performance reviews that her cash-handling abilities were an area for improvement. One review noted, “Ramona needs to remain focused at all times to detail and accuracy. Immediate attention to bank assets is a must.” Supervisors’ notes from past years also indicated that DeBra had made several cash-handling mistakes and was counseled for those incidents. Still, she wasn’t formally written up and continued to receive passable performance reviews.
Things changed when DeBra began to report primarily to Sexton. She later testified that she heard Sexton say “he didn’t want to get close to a person, because it would be more difficult to fire that person,” which she concluded meant he was already planning to terminate her from the outset of their relationship. Almost immediately after becoming branch manager, Sexton began to document DeBra’s cash-control errors. Some of the errors were minor, such as leaving $5 in the cash counter, and others were more significant, such as failing to return a debit card to a customer.
In December 2013, Sexton contacted DeBra’s other branch manager to see if she was committing similar errors at his branch. The branch managers put her on a performance improvement plan (PIP) in January 2014. The PIP outlined several performance issues and areas for improvement and stated that she could face “corrective action, up to and including termination,” if she didn’t improve. The PIP also indicated that she would receive a final review to assess her performance on February 3. DeBra was surprised to receive the PIP—she felt it was unnecessary since she had never been formally disciplined during her time at the bank.
During the PIP period, DeBra made two additional cash-control errors, including leaving her coin vault unsecured and being $100 short. After the PIP expired (seemingly without the final review on February 3), DeBra continued to make mistakes. On February 24, she was given a final written warning for unsatisfactory performance. The warning listed the two errors she made while the PIP was in effect as well as some of her more recent errors.
Sexton documented three additional errors by DeBra in March 2014. At that point, he and the other branch manager talked to their district manager about terminating DeBra. Sexton testified he was the first to suggest termination. The other branch manager didn’t think DeBra’s mistakes at his branch were enough to justify termination, but he agreed with the termination decision based on the “totality of the issues.” Sexton, the other branch manager, and the district manager spoke to HR, which approved the termination decision. DeBra was fired on April 14. She was 59 years old at the time of her discharge.
DeBra filed a discrimination charge with the state human rights commission and eventually filed a lawsuit in which she claimed she was discriminated against on the basis of her age, in violation of the federal Age Discrimination in Employment Act (ADEA), which prohibits discrimination in employment against individuals who are 40 or older. She claimed she was targeted for disciplinary action while younger employees who made similar or worse mistakes were not. The trial court granted summary judgment to Chase, ruling DeBra hadn’t established the basic elements of her case and wasn’t entitled to take her claims to a jury. She appealed to the U.S. 6th Circuit Court of Appeals (whose rulings apply to Tennessee employers).
Under the ADEA, an employee must prove by a preponderance of the evidence that age was the “but-for” cause of the employer’s adverse action. In other words, she must show that, if not for her age, she wouldn’t have been terminated. The court noted that the bank provided a legitimate nondiscriminatory reason for terminating DeBra—namely, her performance issues. Thus, the burden shifted to her to show that her performance issues weren’t the real reason she was fired, but were a pretext (or a cover-up) for age discrimination.
The court noted there are several ways an employee can demonstrate pretext. For instance, DeBra could have argued that she didn’t really commit the errors she was accused of committing. However, she didn’t really attempt to dispute that she made the mistakes. Rather, she continued to insist that although she might have made the errors, Chase singled her out for disciplinary action while allowing younger employees to get away with similar or worse errors.
The court agreed that presenting evidence of younger “comparators” who engaged in similar conduct but received better treatment is one way to prove pretext. In DeBra’s case, however, the court didn’t buy that argument. The court acknowledged she presented evidence that younger employees (including one in her late 20s) made similar or worse errors than hers, such as leaving a branch unlocked or leaving a cashbox unsecured, but weren’t terminated. The problem with that evidence, concluded the court, was that her alleged comparators reported to branch managers other than Sexton.
In fact, for the most part, the other employees who “got off the hook” reported to the branch manager who had tolerated DeBra’s errors until Sexton came into the picture as her primary supervisor. The court concluded the other manager had a more “yielding nature” and was simply less strict than Sexton. But being a tougher manager didn’t make Sexton’s actions discriminatory unless there was some proof he tended to favor younger employees over older employees. DeBra wasn’t able to offer such evidence. In fact, the bank presented evidence that Sexton had given glowing reviews to an employee three years older than DeBra and had terminated younger employees after terminating her.
The court agreed with the trial court that DeBra couldn’t prove her claims and affirmed the dismissal of the case without a trial. One judge did dissent from the opinion, stating that certain comments Sexton made to DeBra were problematic, including his statement that he didn’t want to get close to people because it would be difficult to fire them. The dissenting judge also pointed out that the write-ups the bank gave DeBra didn’t contain details of all the alleged incidents that led to her termination.
Finally, the judge concluded that while the more lenient manager may not have driven DeBra’s termination, he was one of her supervisors and “went along” with it while not requesting the discharge of other underperforming employees working under his supervision. For all of those reasons, the dissenting judge concluded that the case should have been sent to a jury to decide. Despite the dissent, Chase won the case. Ramona DeBra v. JPMorgan Chase & Company, No. 17-1411.
This case demonstrates how the sometimes tedious day-in, day-out work of dealing with employee performance issues can end up helping (or hurting) you in a lawsuit. The employer did many things right here. Although the employee apparently had a long history of performance issues, the employer recognized it shouldn’t terminate her until it documented her issues over the course of a few months. Its documentation efforts pretty much prevented the employee from later disputing her errors.
Another positive was that the management team brought HR into the loop to ensure the appropriate protocols were followed leading up to the termination. Also, the record doesn’t reflect this, but we can suppose that HR (perhaps with the help of inside or outside counsel) walked through the risk factors before terminating the employee, including conducting an investigation into whether the supervisor requesting her discharge seemed to have a track record of targeting older employees. All of those factors worked very well for the employer in getting the case dismissed.
On the other hand, the backstory on this employee includes some lessons to be learned. First, it appears that discipline throughout the bank was somewhat inconsistent, with supervisors seemingly having very different ideas about when progressive discipline was warranted. That’s problematic for several reasons.
First, an employee who happens to work for a lenient supervisor may truly not be aware that her performance is subpar. The employee in this case said she was “surprised” to receive her first write-up, and she was probably telling the truth since she seems to have committed pretty much the same errors for more than a decade with zero repercussions. Lenient supervisors also tend to set up the stricter supervisors who follow them for allegations of unfairness or, in this case, discrimination. Not to mention the fact that the employees who work for stricter supervisors probably aren’t too happy being subjected to what they may feel is a double standard.
While it may not be possible to get all supervisors thinking and acting the same way—hopefully, somewhere between too strict and too wish-washy—your written policies should provide clear guidance on your progressive discipline protocols, and supervisors should be periodically trained on your standards for progressive discipline. Your supervisory training should include an explanation of why consistency matters and how a lack of consistency can make you vulnerable in a dispute with a terminated employee.
This article originally appeared in the Tennessee Employment Law Letter by Butler Snow’s Kara E. Shea.