Employment & Labor Insider

"Also rocket science."

Employers, let's say you have a problem employee who is well into the protected age group. You are trying to deal with him in a constructive way. You’ve tried counseling. You’ve tried informal and documented warnings. You’ve placed him on a performance improvement plan, affectionately known as a “PIP.”

Nothing has worked, but because you’re a nice employer, you start negotiating with him about a delayed exit that will allow him to save face and provide him with some income for several months.

While you’re ironing out the details, the employee starts being a jerk.

Your reaction: “Fine. So that’s the way you want to be. We’ll go ahead and fire you right now. Put that in your pipe and smoke it, smart guy.”

An understandable reaction, but a legally dangerous one. Here’s a real-life case to show you why.

The nerve of this guy.

Our plaintiff (we’ll call him “Dr. Mike”) was hired by a university medical center to be Chair of the Neurosurgery Department. When he was hired, Dr. Mike was already 59 years old, and the Vice President primarily responsible for hiring him was “a few months older.” Within about two years of Dr. Mike’s hire, there were issues with “his absenteeism, his limited involvement with satellite campuses, his management of surgeons . . ., and his failure to follow internal procedures.”

Apart from that, he was just swell.

His bosses counseled him about these issues, but finally decided that he needed to go. The VP who had hired him said that his successor should have 10-15 years ahead of him, career-wise.

The plan was that Dr. Mike would stay in his position for at least a year and help to recruit his successor. The VP again talked about getting a new chair who was “younger and earlier in their career” to replace Dr. Mike.

One day, Dr. Mike’s bosses had a meeting with him about his compensation during the transition. (I’ll call this the “Alleged Jerk Meeting.”) According to the bosses, Dr. Mike was a jerk and walked out. According to Dr. Mike, the bosses said the lawyers could work out the details, and he still thought the parties were going to reach an agreement.

About a week after the Alleged Jerk Meeting, Dr. Mike’s lawyer sent a letter to the employer alleging that Dr. Mike was being discriminated against because of his age (then 62). The attorney followed up not long after with a second letter. The second letter alleged that the original plan was for Dr. Mike to stay on as Chair for about a year but that the new plan -- now that Dr. Mike was alleging age discrimination -- was to terminate him as Chair immediately. The attorney said that this was “arguably” retaliatory.

The lawyer went on to reassure the employer that this could all go away for a mere $1.87 million. Of course.

The employer's attorney replied to Dr. Mike's attorney and said that Dr. Mike would be terminated as Chair effective two weeks hence, but that he could continue to stay on as a rank-and-file neurosurgeon.

Dr. Mike was then "de-Chaired." His successor was “around the same age” as Dr. Mike.

The VP who hired Dr. Mike – you know, the guy who was older than Dr. Mike and hired him when he was 59 – also made the final decision to remove Dr. Mike as Chair.

Dr. Mike sued, and a federal judge in West Virginia threw out the lawsuit.

Dr. Mike appealed, and last week his retaliation claim was reinstated by a panel of the U.S. Court of Appeals for the Fourth Circuit.

The big “BUT”

The Fourth Circuit panel agreed that Dr. Mike did not have a valid age discrimination case. They noted (1) the VP had hired Dr. Mike when Dr. Mike was 59, and (2) Dr. Mike was only 62 when he was terminated by the same VP. And the VP was older than Dr. Mike, and the new Chair was “around the same age.” In this context, and given Dr. Mike’s performance issues, the VP’s comments about looking for a successor who had 10-15 years ahead of him were not enough to get the age claim to a jury.

Good news.

BUT . . .

But where the retaliation claim was concerned, the timetable was "an issue.”

The original plan was to let Dr. Mike remain as Chair for a year (according to the employer) or two years (according to Dr. Mike). Either way, everybody agreed that there was no plan to remove him as Chair immediately.

Until around the time that his lawyer sent that letter accusing the employer of age discrimination.

I say “around the time” because the employer said the decision to accelerate the removal was made when Dr. Mike acted up in the Alleged Jerk Meeting. That was shortly before they got the first letter from Dr. Mike’s attorney.

If so, then there was no retaliation because the decision was made before Dr. Mike (through his lawyer) ever accused them of age discrimination.

But guess what! The employer didn’t have conclusive proof that the decision to speed up the removal was made before the first attorney letter was received. In other words, the timing of that decision was in dispute.

So, according to the court, a jury will have to decide exactly when the decision was made. The jury may believe the employer. But it may believe Dr. Mike. If the latter, the jury is likely to find that Dr. Mike was retaliated against.

20-20 hindsight: What should this employer have done?

"Generate that documentation. Stat!"

Assuming the employer did make the decision to forgo the transition period because of Dr. Mike’s behavior in the Alleged Jerk Meeting, here are some actions it could have taken immediately to help defeat Dr. Mike’s retaliation claim without a trial:

• Documented Dr. Mike’s behavior in the meeting. Stat!
• Documented that they made the decision right then and there to immediately part ways with Dr. Mike. Or at least documented that they were seriously reconsidering the transition period as a result of his behavior in that meeting. Stat!
• Ideally, informed Dr. Mike – in writing – that the transition period was off the table as a result of his behavior in the meeting. Stat!

None of the above had to be in formal memos or letters. Emails or text messages would have done the trick, as long as they were generated before any protected activity took place.

As I’ve said before, timing is everything in retaliation cases. And if the timing is in your favor, it's even better if you can prove it.

In the words of my friend and former colleague Zan Blue, this is rocket science. Also brain surgery.