Employer’s Documentation of Poor Performance Fends Off Age Claim

The Tenth Circuit Court of Appeals recently rejected the age discrimination claim of a 61-year-old pharmaceutical salesperson who had a documented history of poor performance. Rangel v. Sanofi Aventis U.S. LLC (10th Cir. 2013).

Rangel sued after being selected for a reduction in force based on poor performance. Rangel referenced the numerous performance awards he had received over his 22-year career with the company to show that this reason was a pretext for unlawful age discrimination. However, the company was able to show that it issued new guidelines outlining its expectations for sales professionals in 2006, and that Rangel did not live up to these expectations. Despite performance management discussions, a “below expectations” rating on his 2007 performance review, a written coaching letter in October 2007, and a final written plan in May 2008, Rangel’s performance did not improve.

The Tenth Circuit was also influenced by statistical evidence showing that the ratio of workers over the age of 40 to those under the age of 40 did not change in Rangel’s work group following the reduction in force. The court emphasized that the burden of proving age discrimination was with Rangel, and that he had not met that burden.

Reductions in force are fertile ground for legal claims, especially age discrimination claims. Employers using performance as their criteria for selecting employees for a reduction in force should ensure that the employee’s performance issues are well documented in the event that they must defend their decisions.   

The Tenth Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.