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Performance Documentation Proves Key To Success In Age Discrimination Claim, Even When The Plaintiff Offered Evidence Supporting An Initial Inference Of Discrimination

    A recent dismissal of a plaintiff’s claims of age discrimination serves as a reminder of the importance of consistently developing and maintaining accurate employee performance documentation to the defense of employment discrimination claims.  In Ehrbar v. Forest Hills Hosp., No. 1:13-cv-01761, (E.D.N.Y. September 22, 2015), the United States District Court for the Eastern District of New York granted a hospital’s motion for summary judgment dismissing a former hospital administrator’s claims for discrimination and retaliation under the Age Discrimination in Employment Act and the New York State Human Rights Law.  Although the plaintiff presented evidence supporting an initial inference of discrimination, written documentation maintained in performance reviews, among other things, was sufficient to support dismissal of her claims.

    While the hospital had provided plaintiff with generally positive performance evaluations for three years, notwithstanding that plaintiff in fact had performance deficiencies during that period, her rating fell in the fourth year due to significant log book errors. As a result of one such error, the family of a patient who died wasn't notified because of the lack of contact information in the log. The hospital placed plaintiff on a written corrective action plan in an attempt to ensure future log book compliance.  However, during a hospital inspection seven months later, further log book errors caused by the plaintiff were found.  As a result, the hospital fired her a few weeks after the inspection.

    The plaintiff did provide some evidence supporting her claim that her termination was due to her age and not her log book errors.  For example, the hospital had previously failed to discipline the head of the emergency department’s nursing division, who was 14 year’s younger than the plaintiff, for making similar log book errors.  The Court noted the disparity in discipline raised an inference of discrimination, and it rejected the hospital's contention that the nursing department head wasn't an appropriate comparator because she wasn't similarly situated to the plaintiff.

    However, Court still dismissed plaintiff’s age and retaliation claims finding that since the reasons for plaintiff’s termination were “well documented” and “non-discriminatory”, the hospital's documentation was sufficient to overcome plaintiff’s evidence.  In addition to the performance reviews and corrective action plan, the Court cited the hospital's evidence that inaccuracies in the log book could result in fines of at least $25,000 and the potential loss of Medicaid and Medicare payments, which accounted for 70 percent of the hospital's revenue.  In sum, the Court found that the hospital's explanation that it fired the plaintiff as a result of the logbook errors was a legitimate non-discriminatory and non-retaliatory reason for her termination, and sufficient documentary evidence existed for the Court to grant the hospital's motion for summary judgment.

    This case highlights the importance of developing and maintaining accurate performance documentation and how important they are to the successful defense of employment discrimination claims.  Employers should consider reviewing their policies and procedures regarding performance reviews and disciplinary memoranda as well as conducting an internal audit to confirm managers are writing and maintaining accurate performance review, corrective action and disciplinary documentation.

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