By Wayne Young
In McKey v. U.S. Bank Nat’l Ass’n, No. 19-2638 (8th Cir. October 23, 2020), the Eighth Circuit ruled in favor of the employer in a case where an employee alleged it had illegally fired her on account of her age and in retaliation for reporting suspected age discrimination. The Eighth Circuit is the federal jurisdiction of appellate courts that includes Arkansas, and therefore valuable points can be drawn from its analysis on how similar cases will be analyzed in Arkansas.
The Plaintiff Julie McKey worked for U.S. Bank starting in 1975. Beginning in 2006, she was a Securities Specialist responsible for timely input of client transactions into the bank’s computer system for processing. In 2014, U.S. Bank began to document performance deficiencies in McKey’s work in her yearly evaluations as well as in files maintained by her manager. In 2016, McKey’s manager put her on a sixty-day performance improvement plan. After being notified of the performance improvement plan, McKey complained to human resources that she believed an attempt was being made to fire her due to her age. After the completion of the sixty-day performance improvement plan, McKey continued to have documented errors of varying degrees in her work for two more months, which the manager continued to document. In lieu of immediate dismissal, the bank gave McKey an opportunity to apply for seven other jobs internally, but she was not interviewed for any of them. After her failure to find another internal position, U.S. Bank discharged McKey in October 2016.
McKey sued U.S. Bank in Minnesota state court for age discrimination in violation of the Minnesota Human Rights Act. U.S. Bank removed the case to federal district court and moved for summary judgment, which means the case would be dismissed without a trial. The district court granted summary judgment, and McKey appealed to the Eighth Circuit. The Eighth Circuit analyzed the claim in the same manner as a claim for age discrimination under the federal Age Discrimination in Employment Act (ADEA) and therefore applied the familiar McDonnell Douglas burden-shifting analysis. The Court presumed that McKey had stated a prima facie case of age discrimination and then concluded that the performance deficiencies identified served as a legitimate non-discriminatory reason for discharge.
The Court then moved to an analysis of McKey’s evidence that the bank’s reason for discharge was merely a pretext for age discrimination. The Court held that McKey did not present any evidence of younger workers who were “similarly situated” but treated more favorably. Notably, McKey had not presented the district court sufficient evidence that most of the alleged “comparator” younger employees had the same job duties as she did. Several of them were also ultimately discharged, further undermining McKey’s claim. The Court rejected McKey’s argument that a case for age discrimination could be made by attacking her supervisor’s credibility on an ancillary point that had nothing to do with age discrimination or McKey’s discharge.
The Eighth Circuit also affirmed the district court’s dismissal of McKey’s retaliation claim. The analysis concluded that McKey’s actual supervisors who made the decision to discharge her had no knowledge of her complaint at the time and the four-month span between her complaint and her discharge was too long to support that the report was linked to her discharge without additional evidence.
Finally, the Eighth Circuit rejected McKey’s claim that U.S. Bank’s failure to hire her for other positions was also on account of her age or in retaliation for her report of suspected age discrimination. Again, the Court makes a key point that the jury’s mere ability to disbelieve the employer is not sufficient evidence of an illegal motive, even if the employee presents some evidence attacking the employer’s credibility on immaterial points.
The employer won this case because it had a patient, consistent and well-documented process for walking an employee through poor work performance. There was evidence other employees had been subjected to this same process. The employer made multiple efforts to correct the performance and documented both those efforts and the performance errors. While this is not required in an at-will employment state like Arkansas, it can be helpful to show that the employer held no illegal animus toward the employee and was trying in good faith to work with the employee to improve.
The employee’s long tenure did not insulate her from an adverse job action. The employer, while giving the employee multiple opportunities to improve, ultimately had to make a tough decision that it could not tolerate the deficiencies any longer.
The fact the decision-maker managers were unaware of McKey’s reports of discrimination was helpful to the employer. To the extent this is possible in a workplace, it can help both the confidentiality of the reporting mechanism and can eliminate a potential illegal criteria from entering the equation on an employment decision. Of course, in an investigation of such a report, it is not always possible to keep the manager at issue from knowing the nature of the allegations and report.
Arkansas does not have a state statute prohibiting age discrimination in private employment like the Minnesota Human Rights Act. The principles, in this case, would, however, equally apply to those employers in Arkansas covered by the federal Age Discrimination in Employment Act (ADEA) as well as public employers covered by an Arkansas statute prohibiting age discrimination.
An employee cannot avoid having their case of discrimination or retaliation dismissed in the Eighth Circuit simply by saying a jury might not believe the employer’s explanation.
If you have a difficult employment situation with a long-tenured employee, you should seek professional counsel to walk you through the process to eliminate as much risk as possible.
H. Wayne Young is a partner with the firm and a member of the Labor and Employment Law Practice Group. His practice focuses on employment and labor law including discrimination matters, harassment, wage and hour compliance, family and medical leave and covenants not to compete. He advises his clients in these matters from the compliance stage, to defending government investigations and litigation if necessary.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.