On March 16, 2010, an Ohio court of appeals affirmed summary judgment for an employer in an age discrimination case.  In Wigglesworth v. Mettler Toledo Int’l, the plaintiff was terminated for performance issues.  He pointed to the employer’s disregard of its own progressive discipline policy, as well as positive comments about some of his work skills in his performance reviews, as evidence of pretext.  Not enough, said the court.  

With respect to the plaintiff’s performance reviews, the court stated “the fact that an employee does some things well does not mean that any reason given for his firing is a pretext for discrimination.”  With respect to the lack of progressive discipline, the court noted that the employer’s policy explicitly stated it was free to “at any time modify, withdraw, or disregard its policies, including its progressive discipline policy.”  This language, coupled with the lack of evidence that the employer applied the policy more favorably to younger employees, convinced the court to toss the plaintiff’s case.

This case carries a couple of important lessons for employers.  First, make sure your policies contain language providing you with flexibility, especially if you have a progressive discipline policy.  Second, make sure your supervisors know how to manage performance.  The supervisor in Wigglesworth got it right: his written reviews of the plaintiff’s performance were consistent with his stated reason for termination.