By Brandi O. Brown, J.D. By failing to offer anything more than the ages and admission statistics of comparators, two plaintiffs alleging age discrimination found they were unable to survive their former employer's summary judgment motion, filed with a federal district court in Illinois. The employees, allegedly fired for poor performance, did not provide evidence regarding the experience, background, or education level of the comparators, nor was the court aware of whether they had the same supervisors. The employer's motion was granted (Kuebler v. NuCare Services Corp., March 14, 2016, Gottschall, J.). Hired by former colleague. Although both employees worked for the employer for less than a year, the first had worked almost a year with a sister company prior to being transferred to NuCare. She was hired for that job by an executive with whom she had previously worked and he was the one who made the decision to transfer her to NuCare. He also hired the second employee on her recommendation. 'EAP' and termination. Both worked as liaisons responsible for placing hospital patients into nursing facilities. Each had one or more hospitals out of which they funneled patients to one or more specific nursing facilities. Within a few months of her transfer, however, the employer became concerned about the first employee's admission numbers, particularly as compared to the numbers from the prior year for the same hospital. This concern was compounded by the fact that the prior liaison had also had responsibility for another hospital at the time. The first employee was placed on an Employee Action Plan (EAP) in April, with a specific admission number goal set for the following 30 days. Her numbers fell short of that goal. The executive who hired her eventually made the decision to terminate her employment in June. She was 53 years old. The second employee worked out of three hospitals and funneled patients into one nursing facility. According to the employer, her low admissions numbers were compounded by the fact that she had trouble getting along with the nursing facility. She was placed on an EAP in May and also failed to meet her 30-day goal. She was fired in late June. She was 58 years old. The former employees filed suit alleging that the employer had violated the ADEA when it fired them. Indirect method. Using McDonnell Douglas's "burden-shifting" approach, the employees argued that the employer's given reason for terminating their employment—poor performance—was pretextual. In this case, two of the elements of the prima facie case—related to the employer's legitimate expectations and that similarly situated coworkers outside of the protected class received better treatment—were "closely intertwined with the pretext analysis" and appropriately were combined for analysis. The court noted it was undisputed that both employees were placed on EAPs. The evidence also demonstrated that, as the employer contended, the first employee's admissions in her first four months compared unfavorably with the same four months of the prior year under her predecessor. She also failed to put forward evidence to rebut the employer's argument that she failed to meet her EAP goal. The same held true for the second employee. The employer presented evidence that it was unhappy with her performance and, in particular, her attitude, and that she also failed to meet her EAP goals. No way to assess comparators. Although the employees asserted that the employer was not credible when it claimed they were fired for poor performance and that it had applied different expectations to them than to younger employees, they failed to offer competent evidence that would allow the court to assess the performance of the younger liaisons. The employees failed to present evidence that the other liaisons had comparable education, experience, or qualifications. Offering nothing more than bare age and admission numbers for two years was not enough. The employer argued that it expected better performance from the first employee given her prior experience. While the court had information about her experience and background, it had no similar information for the comparators. It was also not known whether they were supervised by the same people. Finally, the court explained, the employees failed to prove that the employer's reasons were pretextual. Although they argued that the employer had "grossly inflated" admission figures in their EAPs, whether or not its expectations were reasonable was not a matter for the court. Nevertheless, it noted that in view of the spreadsheets, the admissions numbers were "not grossly inflated." Direct method. The court also concluded that the employees failed to present a “convincing mosaic” of circumstantial evidence that was sufficient under the direct method. Evidence that a second-level supervisor had stated he was "unimpressed" with the second employee's demeanor was unhelpful when there was no evidence that he was involved in placing her on the EAP or in the decision to terminate her employment. The court also noted that none of the evidence presented by the employees suggested that the employer's reason for firing them was unworthy of credence.
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