One of our employees, who happens to be in the protected age group, has a (charitably described) ‘strained’ relationship with his boss. He feels that he has been subjected to unfair criticism and that his supervisor’s performance assessments of his abilities do not reflect the true value of his contributions.

He is convinced that he will never “get a fair shake” from this supervisor and has asked that we transfer him. We don’t really have a comparable position in our organization. Moreover, we’re not convinced that transferring an underperforming employee at his/her request is necessarily a good precedent to establish. If this employee refuses to continue working for his current supervisor, can we fire him?

Roy’s Analysis:

You can fire any employee, but that begs the two critical follow-up questions – is the discharged employee likely to institute litigation as a result of the termination and, if he does, is he likely to prevail?

You point out that the individual involved is in the protected age group, so assuming you have at least 15 employees (as required under the Age Discrimination in Employment Act (ADEA)), you risk claims under both federal and state age discrimination statutes.  I’ll focus my analysis on the ADEA, recognizing that many state statutes parallel the federal statutory scheme and analytical framework.

As you likely know, the ADEA and its state counterparts do not prohibit the discharge of employees.  Rather, the statute simply prohibits the discharge of an employee because of that employee’s age.  If the employee is failing to meet the employer’s legitimate job expectations, the employer may impose any disciplinary action it deems appropriate, up to and including termination.  Of course, if other employees (especially those outside the protected age group) have exhibited similar performance or behavioral problems demonstrated by the employee in question and have not been disciplined, the employer has a problem.  In ‘comparator’ cases, the key to the discrimination allegations is differential treatment.

In the situation you described, you stated that one of your protected age group employees contends that a particular supervisor treats him unfairly (allegedly based on his age).  As a result, he has requested that you transfer him to another supervisor.  You point out that your organization does not really have a “comparable” position to which he could be transferred.  You also note that you are uneasy with the precedent of transferring a non-performing employee to another supervisor.

In my view, both of the concerns you articulated have legitimacy.  Even if you did have a comparable position in a different part of your organization, like you, I would be anxious about the precedent of using a transfer as a solution to a non-performance problem.  But, before you completely reject this option, you may want to consider the following questions:

1) Have you allowed other employees to transfer to a different supervisor upon request in the past?  If so, have any of those transfers been linked to the transferee’s perception that he/she would be treated more fairly by a different supervisor?  If you have permitted these types of transfers, and if those employees were outside the protected age group, you will need to be able to explain why that approach was appropriate previously but not now.

2) How was the employee’s performance?  How long was he employed by your firm?  Was he supervised by others in the past, and if so, how was he rated?  Is there a marked distinction between your employee’s previous ratings and his performance ratings from the supervisor about whom he has complained?

3) Are the current supervisor’s ratings justifiable?  The fact is that different supervisors often assess employees’ performance differently.  Mere distinctions in performance ratings do not necessarily support an allegation of bias or discrimination.  It could be that the prior evaluations were overly generous.  Or, it could be that the current supervisor is simply more insightful and thoughtful about the quality of the employee’s performance. But, in a context where your employee has been supervised by other management employees and those other employees gave him higher ratings, it would be worth your time to explore why.

4) Have any criticisms been leveled at your current supervisor with respect to discriminatory or biased attitudes?  Has anyone else accused him of discrimination?  If yes, what was the outcome of the investigation into that situation?

5) How is the complaining employee perceived by his co-workers?  Is he highly regarded?  Do his peers consider him a high-performing employee?  Does he help others to perform their jobs more effectively?  Will others share his perception that the only reason he is been evaluated harshly is that his supervisor is unfair, or worse, biased against older employees?

The way in which these and related inquiries are resolved will help guide your company in determining the appropriate course of action with regard to this particular employee.  For the purposes of the narrow question you posed, let’s be optimistic.  Let’s assume that: a) you have not let other employees transfer to a different supervisor at their request in the past, regardless of their ages.  Let’s also assume that the current supervisor’s assessment is not radically different (i.e., lower) than others who have supervised this employee previously. Further, let’s assume that the supervisor (about whom no claims of discrimination have been asserted in the past) is a fair and objective evaluator of talent and job performance.  Finally, let’s assume that some of your employee’s co-workers also have concerns about the quality of his performance and do not believe that he is being treated unfairly.

In this context, I see little downside to rejecting the transfer request.  I would not necessarily advocate terminating the employee, unless his performance problems have reached the level where discharge is considered the only viable alternative.  Rather, I suggest that you candidly apprise the employee that your company is unable to fulfill his transfer request and that he will have to improve his performance to satisfy the demands of his current supervisor.  If he refuses to do so and elects to resign instead, your defense case will have gotten considerably stronger.  I suspect that it would be difficult for an employee to make out a compelling “constructive discharge” argument solely on the basis that he did not wish to work for a particular supervisor.

A recent case from the 8th Circuit Court of Appeals should provide you comfort with respect to this message to your employee.  In Haigh v. Gelita USA, Inc., Civil File Nos. 09-3479/10-1647 (8th Cir. January 28, 2011), the employee asserted various claims against his employer (age and disability discrimination and retaliation). Plaintiff’s claims hinged largely on his contention that his current supervisor, Mark Skibinski, treated him unfairly.  Plaintiff sought a transfer to a different supervisor, which the employer refused.

The district court granted summary judgment on Haigh’s age and retaliation claims.  Among other factors the court highlighted were: a) the fact that Haigh had been hired at age 60, and discharged at age 66; b) Haigh’s prior supervisors had given him mixed rankings, at best; c) Haigh’s history of performance and interpersonal issues; and d) Haigh’s concurrence that the parties should part ways, when Haigh advised the company he could not work for Skibinski.  The appellate court found that Haigh’s explanation of why he failed to meet the company’s legitimate performance expectations (Skibinski was setting him up to fail), did not create a genuine issue of fact as to the whether Gelita’s justification for his discharge was pretextual.

Finally, the Eighth Circuit included an important reminder about the role of the courts in assessing management’s decision-making: “we note this case is illustrative of the general principle that we ‘may not second-guess an employer’s personnel decisions, and we emphasize that employers are free to make their own business decisions, even inefficient ones, so long as they do not discriminate unlawfully.’”  Thus, while there may have been personal conflict or animosity between Haigh and his supervisor, Skibinski, there was no evidence that this conflict was attributable to age discrimination.

Bottom line: you do not have to honor your employee’s request for a transfer to a different supervisor.  Moreover, if he refuses to continue working for his current supervisor, you can advise him that this will result in the termination of his employment with your company.