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Attributing Performance Issues To Age Is Imprudent

On Behalf of | Mar 10, 2015 | Employment Law

Most good managers have analytical abilities to allow them to assess the cause of any problems to enable resolution of them. However, with employee performance issues, a manager’s speculations as to the cause for the performance issue could put the company in a discrimination case. Such was the issue in the case of Addiel Soto-Feliciano v. Villa Cofresi Hotels, Inc. and Sandra Caro.

On February 20, 2015, the federal First Circuit Court of Appeals reversed the decision from the Puerto Rico federal District Court granting summary judgment against Soto for his age-discrimination claims. Puerto Rico is part of the territory covered by the federal Circuit Court of Appeals which also has within its territory Massachusetts and New Hampshire. Therefore decisions from the federal First Circuit Court of Appeals as to federal employment laws are binding on New Hampshire and Massachusetts employers and employees alike and heed should be taken to this decision.

In the case, more than a decade ago, Soto began working in the kitchen at Villa-Cofresi Hotel, a beachfront family-owned established in Rićon, Puerto Rico. By January 2010, Soto had become the Hotel’s head chef, but by March of that year he had been fired. Soto states that he was fired because of his age and in retaliation for him raising an age-discrimination concern to management. The Hotel and its General Manager, Sandra Caro, who was also sued for the alleged discrimination, asserted that Soto had been fired for misconduct on the job including using profanity to such an extent that it generated complaints from co-workers and possibly also customers, expressing a bad attitude towards his supervisors, for insubordination to his managers, frequently arriving late to work, making at least one threatening remark to a supervisor, and disrespect of a fellow staff member’s religion. However the evidence was conflicting as to whether or not these issues were brought to light after he raised his age-discrimination complaint. Soto also had arguments that after all the years working at the Hotel and becoming head chef, that management and supervisors told him he was slow in doing his work because he was too old. The Hotel also did not put in detailed writing any performance deficits even though the Hotel’s policies provided for such written warnings and provided for a progressive disciplinary procedure which all resulted in the federal First Circuit Court of Appeals deciding that the case would not be resolved by summary judgment in favor of the Hotel and therefore Soto would have his opportunity to try his case before a jury. Soto sought back pay, lost benefits, compensatory damages, liquidated damages, attorney’s fees, and an order directing the Hotel to reinstate him and to cease discriminating against him on account of age.

If the evidence had revealed that the Hotel warned him in writing of his misconduct promptly after each incident and even with verbal warnings documented those warnings with him showing that he had, in fact, been given a verbal warning, such evidence would have assisted the Hotel. Furthermore, if the evidence revealed any performance-based issues, such as him being too slow on the cook line were directed to him that evidence would had assisted the Hotel and perhaps Soto would had not even brought the age discrimination claim.

Under federal age discrimination laws, Soto would not have been given an opportunity for an accommodation to do his work slower because he was old. Therefore, there is no legal reason for the Hotel to inquire as to whether he was slow because he was old. Whether his age did result in him being slower in his job does not change the fact that he needs to perform his job unless he has a disability. Soto had not claimed he had a disability, but did claim that he was told that he was too slow because he was old leaving it possible that a jury could conclude that the Hotel’s management made false perceptions as to Soto’s abilities based upon his being older than other employees.

Management and supervisors in companies should be trained to address employee’s performance problems directly without any comments as to their perception of the reason for those performance problems if that perception is that age is a factor. While in this case Soto may not possibly be able to convince a jury that he was fired as a victim of age discrimination, even if he is not successful, time and money will have to be spent by the Hotel in defending this case which may have been avoided if management and supervisors documented performance issues of Soto when they occurred and provided those documents to Soto and the evidence had revealed that their comments about his performance issues did not include their perceptions as to the reasons for his performance issues was that he was too old.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].