Plaintiffs Are Getting Wise To Pretextual Unachievable “Growth Plans”

Employment lawyers are familiar with cases of employers who, to “paper the record” or to create a “paper trail,” create tests for targeted employees or set performance goals that are impossible to reach so that the targeted employees are destined to fail any such test of performance.

In effect, they are intentionally made to fail – and then it is an easy step to terminate.

Soldier, Obstacle, Course, Military

Not a good idea: you can still get sued!

A former teacher in a Texas district for 17 years has filed suit claiming age discrimination, after her contract was not renewed when she was 62. According to a local newspaper, she alleges that she received “glowing performance reviews from 1998 through 2011 but that stopped in 2012. In that review, she said she received a significantly lower score.”

Significantly, she claims that this occurred “after she refused repeated suggestions by [the principal] that she retire to spend more time with her family.”

After this first bad review, she says that she was put on a yearly “growth plan,” which HR people know can be referred to by many names and is sometimes referred to as a “performance plan,” which plan became “more onerous each year” and often “contradicted the comments and scores found in her (performance reviews).” Further, she was allegedly “subjected to intense scrutiny and was required to do things that younger, less-experienced teachers were not required to do.”

Finally, she claims that – as is usually intended when a growth plan figures in a lawsuit – she was fired.

The school district has responded with the standard McDonnell Douglas defense that “there were legitimate, non-discriminatory and legitimate, non-retaliatory reasons for the employment action(s) being challenged in plaintiff’s complaint.”

Takeaway: I have no idea how this one will turn out: it all depends on the facts of the case. However, we can still learn from the claim itself.

Of course growth plans and performance goals are legitimate and necessary.   However, don’t use them as a pretext to terminate.

If an employee is targeted for termination s/he usually knows it, and is likely primed to see the growth plan performance goals as deliberately unachievable and designed simply to create a paper trail towards termination.   If the employee is in a protected class, better be prepared for this claim.  As always, performance issues or other personnel issues should be well-documented already.  Don’t create a performance plan or goal for a weak employee that you know cannot be met.   Make sure that the employee is not singled out for such a goal, and that the goal is in line with the goal of similarly situated employees, and the past, satisfactory performance of the targeted employee.



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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]