Impossible to Meet Quota Was Pretext for Discrimination

A bank employee with a rare nerve condition that affected his voice was fired after 20 years of service with the bank. The employee had headed the bank’s real estate department for 10 years before his termination, and he served as a loan officer and sales representative for the bank’s installment, consumer and home equity loans. Beginning approximately three years before his termination, the employee experienced a gradually worsening condition affecting his voice. The condition periodically made it difficult for the employee to speak, and he was sometimes unable to raise his voice above a whisper. Although the employee’s position caused him to be in regular contact with customers and the public, he did not request an accommodation or a transfer to any other position before his termination. The condition did not seem to affect his job performance, as he outperformed the bank’s other loan officer with the same title. Nonetheless, bank managers placed a sales quota on the employee and gave him 90 days to improve his performance. The employee was given a sales quota which required him to increase loan sales by 100 percent. The bank’s other loan officer was not placed on a similar performance improvement plan. The employee was fired after he failed to meet the quota. He subsequently applied for 22 vacant jobs at the bank, but was not hired for any of them. The employee sued the bank, claiming that his termination, and the bank’s refusal to rehire him, was premised on discriminatory intent, in violation of the Americans with Disabilities Act (ADA). The bank argued in response that it had a legitimate nondiscriminatory reason for the employee’s termination – his failure to meet his sale quotas or to improve his performance. The bank also argued that its refusal to rehire the employee was based on his inability to perform an essential function of the jobs, namely to communicate with customers. A trial court agreed and granted summary judgment to the bank. The United States Court of Appeals for the Eighth Circuit reversed, rejecting the bank’s argument and calling the quota “impossible to meet.” The employee’s past performance, the bank’s failure to impose quotas on other bankers, and the decision to keep an underperforming banker whose loan production was worse than the employee’s, constituted evidence that the production quota was an effort to ensure the employee’s failure. Moreover, the employee’s long record of service, even with his voice condition, was evidence that he may have been able to continue to perform some jobs at the bank. It was also sufficient to defeat summary judgment for the bank. Employers should be careful when implementing performance improvement plans to ensure that they are reasonable and evenly applied to similarly situated employees.

Willnerd v. First Nat’l Bank of Nebraska, Inc., No. 07-3316 (8th Cir. Mar. 13, 2009)