Last week, the Sixth Circuit affirmed a six million dollar compensatory damages award (most of which was back pay and front pay) in an age discrimination claim case against New York Life. (The court awarded an additional $6 million in punitive damages but I will focus only on the merits of the age discrimination claim).
I've written on a related topic in a prior post, involving an appeal of another age discrimination claim where Sears terminated a store manager for poor performance. That store manager argued she was treated worse than other younger store managers but Sears relied upon two key facts, that the fired store manager was truly the worst performer of the lot and that the comparisons the fired store manager drew were mixed, in the sense that she tried to cherry-picked the comparators.
Contrast that with what happened in the New York Life ("NYL") case. NYL also quantified its managers' performance. Instead of relying, as Sears did, on store sales metrics (that is, figures that were largely objective), NYL's metrics were a mix of subjective and objective factors. NYL used "an index that it calls Growth Profitably and Accountability ("GPA") as one means of measuring a manager's performance." (The GPA scores could range from 0 to 4.) I won't go into how GPAs were derived, it is enough to say that when NYL fired the plaintiff, it said it was because he missed reaching a goal (hiring a certain number of sales employees), a goal he missed hitting by one (debatable) point. So, (a) comparatively low GPA + (b) missing a goal by one point = (c) termination of employment.
Aside from attacking the accuracy of his GPA, the fired manager presented strong evidence that NYL had deviated from applying its "normal rules" (remedial action procedures for when a manager has a low GPA) to other, younger managers, without doing the same for him. Unfortunately for NYL, the GPA calculations made it easy for the plaintiff to demonstrate the favoritism of younger managers. The court devoted several pages to discussing how the younger managers (in other geographic areas) had GPA's similar to the fired manager but received promotions or were not put on "performance warnings" and were not terminated. Of course, NYL argued the fired manager's comparisons were invalid but the court of appeals rejected that argument out of hand (perhaps too readily, I would argue) largely because the GPAs for the younger managers were every bit as bad as the fired managers' GPA. They were, in reality, so stark, NYL's attempt to explain them away them fell flat.
I wanted to write about this decision to make several points.
First, consistency is crucial. If there are reasons to make distinctions, make sure to document them clearly in the appropriate document.
Second, if you are going to quantify performance, don't try to quantify subjective factors and then make fine distinctions between close numbers. That is, if the numbers you use are going to be relatively close together (say 12 versus 13 on a 20 point scale), that distinction isn't going to come across all that well when a court looks at the raw numeric score. (Recall Sears not only used objective figures –poor store sales – it also included several anecdotes which demonstrated why the fired store manager didn't have a clue how to effectively manage a store.) When the numbers are close – or when the employee misses a goal by a small amount – quantification makes it much easier for the employee to effectively argue that the employer failed to accurately evaluate the employee's performance.
Third, don't fall into the trap of thinking that putting numbers on an employee's performance necessarily makes that performance assessment "objective" or easier to defend. Neither is true, unless you are perfectly entirely consistent (an almost impossible outcome). Don't get me wrong, if the numbers are based on objective factors (or even largely objective factors), they can be quite useful (as long as you treat similarly situated employees the same). But when employers try to turn subjective factors into objective-seeming figures, they simply change the focus of the argument from the accuracy of the performance assessment to whether the individual's performance "factors" were properly scored vis-à-vis the other employees. Simply put, I would much rather defend a detailed explanation of an employee's performance written in plain English than one where the employer has developed 12 different performance factors and put a number next to each factor for each employee.
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