Poor performance plenty reason for firing
Published 11/03/06

An employee who claims to have been fired for age discrimination cannot prove her case merely by showing evidence that the employer's perception of her poor job performance was not reasonable; she must show actual discrimination.

This point was illustrated in the September 29, 2006 Massachusetts Federal Court decision of Dorothy Guinan v. Boston College . In that case Guinan, a 50 year old woman and single mother of one son, sued Boston College , Senior Vice President of the College James McIntyre and her immediate supervisor Tracey Lapan.

Guinan had worked at the College from February 2000 to August 2000 as a part-time secretary in the office of the Senior Vice President. McIntyre frequently dictated correspondence and other official business on audiotape. Guinan's job was to transcribe the tapes dictated by McIntyre and to submit the typed product to Lapan, who would then edit and submit the documents to McIntyre. Guinan's duties also included filing documents and answering telephones.

During the six months of Guinan's employment, Guinan's hours were generally from 9:00 a.m. to 1:00 p.m. or 8:30 a.m. to 12:30 p.m. Guinan admitted that on more than one occasion she was late for work. Guinan acknowledged that Lapan warned her about her tardiness, however, asserted that she was singled out by Lapan. Other than Guinan's conclusory statement that she was singled out, she provided no evidence that Lapan or McIntyre treated her arbitrarily with respect to her punctuality at work.

As a follow up to the meeting Lapan had with Guinan to review her job performance, Lapan provided Guinan with a letter dated August 17, 2000, summarizing her criticisms of Guinan's work and punctuality.

Following the receipt of the letter, which upset Guinan, Guinan continued to transcribe tapes for McIntyre and on August 25, 2000 she arrived to work to find Lapan had made some corrections to work that she had done since receiving the letter. Guinan went into Lapan's office personally to discuss the corrections.

Guinan, still upset at having received the formal letter that documented Lapan's dissatisfaction, explained to Lapan that she thought she had transcribed McIntyre's tapes exactly. Guinan requested that Lapan review the tapes, Lapan refused. Guinan persisted and Lapan subsequently asked Guinan to leave her office. Guinan then said, "Is this the way the [ Boston College business school] teaches how to deal with conflict?" Upset, Lapan then told Guinan that she was acting unprofessionally.

On August 29, 2000, McIntyre met with Guinan personally to discharge her. He told Guinan that the basis for her termination was: that her performance was substandard and unacceptable; and that her behavior towards Lapan on August 25, 2000 was insubordinate.

Guinan's evidence of discrimination was that at the August 29, 2000 termination meeting with McIntyre, Guinan defended herself by claiming that her errors were merely judgment calls to which McIntyre responded that some of her alleged mistakes may not be objectively wrong and said might have resulted from "generational differences."

The Court found that statement may support an inference that McIntyre was attempting to help Guinan to feel less professionally threatened by Lapan's editorial style, but not that of age discrimination. Guinan also claimed at that same meeting McIntyre stated he believed Guinan was not a "good fit" for the office. Such a general comment provided no evidence of age discrimination.

Guinan also stated that Lapan had told her that McIntyre "would have preferred to hire a male or a clone of [Lapan]." Then McIntyre had stated that his wife had five kids and could handle it and that Guinan could not handle one, as well as Lapan had stated to McIntyre that "who else would you expect to apply for this job except someone with mother's hours?" All those comments could arguably provide some evidence of discrimination against mothers, but they do not provide evidence of discrimination of women over 40.

The Court found that there was ample evidence that in fact the defendant believed Guinan's performance to be inadequate, believed her to be insubordinate, and had fired her for those reasons.

As the Court noted, there is no question that timeliness and politeness are legitimate demands of an employer. In this case wherein the employer believed that Guinan was tardy, insubordinate and had poor work performance, it is insufficient for the employee to prove that she was performing her job satisfactorily. Simply put, if an employer fires an employee for a nondiscriminatory reason, even if the employee can provide some evidence challenging the reasonableness of the decision, this does not itself give rise to an employment discrimination claim. Guinan was obligated to produce some evidence that the defendants fabricated their nondiscriminatory justification, failed to do so, and therefore she was not permitted to go forward with trial.

J. Daniel Marr is a director and shareholder of Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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