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No Excuse for Poor Performance

Published:  August 11, 2014

A recent decision in the Seventh Circuit Court of Appeals is a good reminder to employers that legal protections from retaliation and discrimination cannot be used to excuse an employee’s poor performance. In Langenbach v. Wal-Mart Stores, Inc., the court made it clear that an employer need not excuse an employee’s continued failure to meet expectations simply because the employee has engaged in a protected activity.

In this case, Erika Langenbach was hired by Walmart in 1998 and performed her work well earning two promotions in the first few years of her employment.  In 2008, Langenbach was admitted to Wal-Mart’s Management-In-Training program and her first few evaluations stated that she was a “Solid Performer.”  Subsequently, her supervisors noted deficiencies with her performance and, in 2009, she was placed on a Performance Improvement Plan.  Her evaluations going forward noted that she was not following management routines and frequently failed to complete her duties on time.  In 2010, Langenbach’s review rated her as “Development Needed.”  In mid-2010, Langenbach took a six-week leave under the Family and Medical Leave Act (FMLA) to have surgery. After she returned to work, she was again evaluated as “Development Needed” and placed on a “Performance Improvement Plan.” Three follow-up evaluations were performed to determine if she was making progress, but at all of these sessions Langenbach was rated as “Below Expectations.” Five months after returning from leave, Langenbach was terminated.

Among other claims, Langenbach alleged that the poor performance evaluations and ultimately her termination were in retaliation for her taking FMLA leave. As Wal-Mart was able to state a legitimate, non-discriminatory reason for her termination (i.e. poor performance), the court ruled that her claim of retaliation had no merit and affirmed the summary judgment ruling for Wal-Mart.

In addition to the reminder that taking job protected leave does not excuse an employee’s poor performance, this case illustrates the importance of training supervisors and documenting performance.  Wal-Mart prevailed because it had well-documented Langenbach’s poor performance.

Too often we see claims where an employee has been performing poorly, but performance evaluations do not reflect this.  If you are facing a situation where you are considering disciplining or terminating an employee for poor performance soon after they have engaged in protected activity, such as leave under the FMLA, it would behoove you to consult with your employment counsel before moving forward. Employment counsel will help you ensure you are complying with state and federal employment law and have sufficient documentation to back up your decision, which will better position you in the event you later have to defend your decision.

If you have any questions regarding employee discipline/ termination or the FMLA, please contact any of the attorneys at Royal LLP at (413) 586-2288.