Documenting Discipline Defeats Workplace Discrimination Claim 22:42, June 6, 2016

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Documenting Discipline Defeats Workplace Discrimination Claim

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Z-Tech must have initially thought highly of Dorothy Buchhagen’s talents when the company agreed to employ the 67-year-old woman for $60.00 an hour to write and manage glossary entries of cancer terms for the National Cancer Institute (NCI). Z-Tech’s rate nearly doubled Buchhagen’s pay as compared with the rate her prior employer had paid for a similar job.

Less than a year later, Buchhagen’s supervisor, Dr. Deborah Beebe, gave Buchhagen a low rating on her performance evaluation. Buchhagen in turn met with human resources and management personnel to protest the rating and complain about “harassment.” The complaint did not mention Buchhagen’s age or any other legally protected characteristic. Z-Tech investigated, but the result did not satisfy Buchhagen.

In response to a subsequent NCI request, Z-Tech implemented a backup process to assist Buchhagen in managing the glossary in the event of illness, absence, disability, or other occurrences. However, Buchhagen believed that Beebe had created the process as a “replacement plan” to embarrass and harass her, and contacted NCI directly to complain, undermining Beebe’s authority.

Z-Tech then issued a Process Improvement Plan (PIP — which Buchhagen again contested on the grounds of “harassment”). Buchhagen also responded to the PIP by trying to take unscheduled leaves. And, despite the warning in the PIP that further insubordination would result in termination, Buchhagen failed to adhere to the backup process and held an unauthorized meeting with NCI about the glossary. Beebe warned Buchhagen that she was failing to fulfill the PIP.

Buchhagen responded with an email documenting what the Court would come to call a “laundry list” of complaints, including, for the first time, a claim of age discrimination. Undeterred, Z-Tech terminated Buchhagen’s employment when she failed to improve her behavior.

Buchhagen sued Z-Tech under the Age Discrimination in Employment Act (ADEA), alleging the company had terminated her in retaliation for complaining about age bias.

The Court threw out the lawsuit, noting that Z-Tech had detailed its “growing dissatisfaction with Buchhagen’s work ethic prior to any complaints about age,” including the PIP and subsequent warning that Buchhagen was not following it. Even though Buchhagen was fired shortly after including a claim of age bias among her complaints, the Court called that claim an “afterthought” that did not affect Z-Tech’s legitimate reason to terminate her.

In ruling that Buchhagen could not “turn the ADEA on its head by arguing that her age and experience gave her the right to work . . . without the backup her employer thought was essential,” the Court emphasized that “the ADEA is intended to prevent discrimination based on age, not to confer increased status upon those who become older.” Buchhagen, Ph.D, v. ICF International, Inc. (4th Cir. 2016) no. 15-1557

Key Takeaways

While employers must always thoroughly investigate bias complaints, problem employees occasionally game the internal complaint process to try to make themselves bullet-proof. You must treat each complaint as if it were made in good faith and not retaliate (or appear to do so) based on the complaint.

On the other hand, legitimate discipline can, and should, be implemented independently when warranted. This case demonstrates the importance of documenting employee discipline. Fortunately for Z-Tech and other employers in similar circumstances, detailed records can defeat an insubordinate employee’s lawsuit well before trial.

Online Compliance training is one way employers can incorporate a well-documented approach to employee discipline. If you’re unsure about how to do it, this case study on Namely, an HR-compliance startup that combined growth and culture with training, provides an inside look. LawRoom provides online compliance training on sexual harassmentethics, FCPA and data security to thousands of companies and universities. To learn more, visit us here:

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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