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Performance Improvement Plans Are Inherently Discriminatory

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Performance Improvement Plans (PIPs) are inherently discriminatory.  When managers issue PIPs with assertions of poor performance not based on fact but more on subjective conclusions and then set unreasonably high goals unequal to other employees, the system is rigged for failure, abuse and discrimination from the start.  PIPs have been trumpeted around the employer sandbox for years to “control” employees and form a defense to future litigation. PIPs do not improve employee performance, but only create employee dissatisfaction and fodder for articles like this one. We have written about how abusive PIPs are and what employees can do to beat them HERE and HERE.  

As an employment attorney and litigator, I have access to legal databases containing nearly every decision from courts around the country. I went searching for case decisions to support the above conclusion that PIPs are inherently discriminatory.  While I found cases where the employees were unable to demonstrate discriminatory intent and lost, I was also able to easily locate cases of arbitrary PIPs designed to discriminate.  The following cases are recent examples of employers using arbitrary and discriminatory PIPs against employees.  I will let you judge for yourself why PIPs are inherently discriminatory.

From Good to Bad Performance and the Overt Racial PIP Example

Audrey Phillips, a Black woman, was hired by United Airlines as an information technology project manager in September 2017, reporting to her boss Jeffrey Skains.  In mid-2018, Skains gave Phillips a performance evaluation, stating that she was “doing a great job managing the project team and her IT counterparts”. At the end of 2018, Skains gave Phillips another review and rated her as “partial meets expectations”.  Skains then placed Phillips on a PIP. By mid-2019, Skains terminated Phillips for not meeting her goals.  I will state this is the most common set of facts we see in our client cases in this office.  The employee starts out performing well, receives an excellent review, then a mysterious change occurs resulting in the PIP being issued, then followed by a termination for cause.  Phillips survived summary judgment (Order) based on the following pertinent facts.  Skains failed to hold two other Asian employees to the same standards of performance, even though those two employees clearly had performance issues that negatively impacted Phillips’ performance, but they were not placed on a PIP.  Finally, while on the PIP, a PIP mentor (and I assume a manager) advised Phillips “on how to be less ‘Black’ and to avoid culturally offending” Skains.  I checked the court docket, and the case appears headed to trial, as settlement discussions failed last fall.  I will caution that this case is unusual as direct statements of bias exist in relative very few cases, the majority are proven by asserting circumstantial evidence.

The Retaliatory PIP Example

The next example is also a common case we see in our offices. June Preston was hired as an Executive Sales Representative at Eli Lilly and Company in April 2017. “Throughout 2018, Preston and others made repeated complaints to [Christy Hoffman, District Manager], about the demeaning conduct of male Lilly employees, but their concerns went unaddressed. Preston felt bullied and condescended to by male employees, but eventually stopped complaining to Hoffman because she felt, based on her prior complaints, that Hoffman would be unresponsive…Preston believed that Hoffman favored male employees.”  On December 7, 2018, Preston received a negative review from Hoffman and asked her to identify if there was a problem with her performance. Hoffman assured her there was not.  “About a month later, Preston was denied a position for which she expressed interest.”  In February 2019, Hoffman complained to Preston that she was “trying to throw her [Hoffman] under the bus” because Hoffman managed a “boys’ club”.  “Hoffman expressed that Preston had a negative attitude and was insufficiently supportive of other team members during an award ceremony.  Just over a week later, Preston learned from an Employee Relations representative that Hoffman had complained to Employee Relations about Preston’s insufficient support for other team members.” In reality, we see this a lot; the supervisor complains to HR about the employee in order to start an investigation and build a defense in case the employee sues the employer.  Preston then filed an internal complaint with Human Resources that she was being retaliated for formally complaining about sex discrimination under Hoffman.  On April 9, 2019, Hoffman placed Preston on a PIP.  “Preston alleges that the PIP was not based on an objective assessment of her performance; rather, it was in retaliation for Preston’s complaints about sex discrimination in Hoffman’s district.”  The court denied the employer’s motion to dismiss based on Preston’s above allegations.  It is unclear from the fact pattern if Preston was terminated after the PIP.  Court’s routinely state that PIPS are not adverse employment actions, however, in this case, the Court ruled that the PIP could be an adverse employment action if it “carr[ies] with [it] immediate, albeit non-economic, consequences that in and of themselves go so far as to materially alter the terms and conditions of employment.” (Preston v. Eli Lilly & Co, 2021 WL 5412534, 10/5/21).

The Fictitious PIP Example

The third example involves Andrea Summers, an African America woman, who worked as a Nursing Assistant in the Neonatal Intensive Care Unit at the Children’s Hospital of Philadelphia for over twenty years until her termination on November 17, 2020.  Summers alleged her termination was “because of her race and in retaliation for reporting two of her white female supervisors to the employer’s compliance department, for inappropriate conduct directed at her. Specifically, she accused one manager for communicating with her in a “disrespectful manner” and falsely accusing Summers of delaying delivery of a patient from one floor to another.  Summers also complained about another manager accusing Summers of taking an unauthorized work break. “[Summers” argues that a series of disciplinary consequences flowed from her decision to report her supervisors. [She] alleges that after she made these reports [her supervisor] began “to interact and speak to Ms. Summers in a condescending manner, unlike the way she interacted with White Nursing Assistants. [She] further states that [her supervisor] continued to mistreat [Summers] and issued her three unjustified Disciplinary Action Reports in October and November 2020 for infractions she did not commit. Due to the second report, Ms. Summers was placed on a Performance Improvement Plan and was required to enter CHOP’s Employee Assistance Program, attend five sessions of company-sponsored therapy, and meet with [her supervisor] every other week. Following the third disciplinary report, CHOP terminated Ms. Summers’ employment.” The Court denied the employer’s motion to dismiss based on the following (Order), “…Plaintiff does allege some facts which must be taken as true that, when viewed in the light most favorable to the Plaintiff, plausibly establish entitlement to relief. For example, Ms. Summers pleads that her supervisor spoke and interacted with her in a condescending way that was different from how she interacted with Plaintiff’s white peers. In addition, Ms. Summers alleges that she was reported for violating a variety of Defendant’s policies when she did not in fact commit any of the infractions. As a result of these false discipline reports, she was suspended from work for over a week, placed on a performance improvement plan (PIP) and compelled to attend additional counseling sessions and meetings, and ultimately, terminated.”  We often see examples of false accusations in our client cases like the one Ms. Summers experienced, that she committed acts she never committed.  I included this case for exactly this reason.  In this case the employer just made up the fictitious accusation in the belief Summers would never challenge them or they were just arrogantly biased towards her.  Employees faced with this nonsense must file a written rebuttal to set the record straight. While it will not change the employer’s decision to issue the PIP or terminate, it will help later in the severance negotiation process and ultimately the litigation of the case.

If you would like more information about dealing with a Performance Improvement Plan you received, please contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.