Appraise This!

The Sixth Circuit has ruled a former Kmart Corp. store associate who was selected for a reduction in force while she was out on six weeks of medical leave is entitled to a jury trial to decide whether the company interfered with her rights under the Family and Medical Leave Act and retaliated against her for taking leave.

Reversing a lower court's grant of summary judgment to Kmart, the appeals court finds in an unpublished opinion that a reasonable juror could reject Kmart's contentions that Susan Cutcher's performance was problematic and instead find that her status on FMLA leave affected her RIF appraisal ratings, leading to her selection for termination.

The key issue: the court points out that Cutcher's RIF appraisal was significantly lower than her annual performance review given just 20 days earlier and that none of the reasons given for the lower score had been documented previously.

This case is a reminder to HR: Handle workforce reductions for those on medical leave with care. Whether in times of force reductions or simply standard business operations, attention must be paid to how managers evaluate their employees. It will always be the case that certain managers rate high or low as a practice, so if you can’t train the manager to rate in a more realistic manner, then at least document that particular manager’s practice. This will help avoid the post-hoc allegation Kmart confronted and also lay the groundwork for later explaining potential differences in appraisals made by others.

At the least, remember, a "leave of absence" notation on the section of a reduction in force form identifying the reason for a termination decision will beg a court to deny summary judgment.

Cutcher v. Kmart Corp., 6th Cir., No. 09-1145, unpublished opinion 2/1/10

ADEA and workforce reductions; the latest in the Sixth Circuit

The latest restatement of ADEA standards in the Sixth Circuit is the usual bottle with new wine. The court recently held the plaintiff failed to establish her prima facie case of age discrimination and even if she had, she could not show defendant's proffered reason for terminating her (reduction in work force) was pretext for discrimination. Defendant Spartan offers sheet fed web offset printing and screen-printing, mainly used in advertising. Plaintiff began working there in 1995 as a bindery worker. She worked the third shift, along with four others. In October 2006, Spartan eliminated plaintiff (then 58) and Evert (then 65), as part of a reduction in work force (which she did not dispute). Plaintiff's manager, Pease, said in early fall 2006, work was slow, and the managers decided at a production meeting to cut costs. The managers evaluated their departments for cost savings and the decision to cut costs was a general consensus. Pease testified he decided to lay off two people from the third shift because the first and second shifts were more productive, and kept three people one of whom was Taylor, 29 and allegedly a better team player.

Plaintiff filed suit under the ADEA, Spartan moved for summary judgment, and the district court held plaintiff failed to establish a prima facie case of age discrimination in a work force reduction setting.

The court noted based on the law of the circuit, which is not unusual, when a termination arises as part of a work force reduction, the fourth element of the McDonnell Douglas test is modified to require the plaintiff to provide "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Under the law of the circuit, plaintiff would have to show she possessed superior qualities to Taylor in order to meet her burden of making a prima facie showing in the context of a reduction in work force.

Plaintiff did not show age discrimination and did not establish the kind of "additional evidence" of discrimination the law requires in a reduction-in-force setting. Further, she could not prove Spartan's proffered reason - low productivity and the inability to get along with others -- had no basis, did not actually motivate the defendant's challenged conduct, or was insufficient to motivate her termination. Plaintiff also did not show Spartan's decision to terminate her was so unreasonable as to give rise to an inference of pretext. She failed to create a triable issue as to pretext, and the Sixth Circuit affirmed the lower court.

Schoonmaker v. Spartan Graphics Leasing, Inc.