• Employment Law Update: Employee's inability to improve in specific areas in which she repeatedly was counseled can form the legitimate, non-discriminatory reason for discharge.
  • February 23, 2005
  • Law Firm: Dickie, McCamey & Chilcote, P.C. - Pittsburgh Office
  • To establish a prima facie case of discrimination based upon race, an employee must show that she is a member of a protected class, that she was meeting the employer's legitimate job expectations, that she suffered an adverse employment action, and that similarly situated employees outside of the protected class were treated differently. Once a prima facie case has been established, the employer must offer a legitimate non-discriminatory reason for the adverse action. The 8th U.S. Circuit Court of Appeals has held that an employee's failure to improve after repeated counseling can establish a legitimate non-discriminatory reason for an adverse employment action. Shanklin v. Fitzgerald, 8th Cir., No. 04-1222, February 4, 2005.

    Janet Shanklin, an African-American woman, began teaching at the Positive School in St. Louis in 1991. The Positive School is an alternative high school for "at risk" students. Between 1991 and 1997, Shanklin's performance was rated as acceptable by the assistant principal, who acted as Shanklin's immediate supervisor. At the beginning of the 1997-1998 school year, Marc Montgomery was named as the new assistant principal. Montgomery immediately expressed concerns about Shanklin's teaching performance but continued her "acceptable" rating that year.

    During the 1998-1999 school year, Montgomery twice reprimanded Shanklin and provided to her a written Summative Evaluation listing areas in which Shanklin was expected to improve. In May 1999, Montgomery placed Shanklin on a formal Performance Improvement Plan (PIP) to assist in curing the listed deficiencies. However, during the following school year, Montgomery observed Shanklin's classroom on several occasions and told her that he did not believe that she was curing the deficiencies that had been pointed out to her.

    In October 2000, Montgomery issued a second PIP. However, Shanklin's performance did not improve, and a 30-day warning letter was issued, specifying several instances of "incompetency, inefficiency, and insubordination." This written notice warned Shanklin that if her performance did not improve within 30 days, the School Board would recommend her dismissal. During the 30 day probation, Shanklin failed to improve but expressed concerns that she had not been provided sufficient time for improvement. Based on that concern, the Board gave to Shanklin an additional five months within which to improve her teaching skills.

    At that point, a three-member team was formed to observe Shanklin and to assist in and evaluate her improvement. At Shanklin's request, Montgomery was not on the team, but Assistant Principal Sharon Washington, an African-American female, was included. Shanklin's request that her classes be videotaped was also granted. The team observed Shanklin's classes in announced and unannounced visits and through review of the videotapes. Based on the observations, the team issued a "Statement of Charges," alleging that Shanklin was incompetent, inefficient, and insubordinate in her teaching. At Shanklin's request, the Board conducted a hearing on the Charges, at which Shanklin's attorney both cross-examined members of the evaluation team and presented a defense. After the hearing, the Board unanimously voted to discharge Shanklin.

    Shanklin sued the Board in federal court. The lower court granted summary judgment for the Board, and that decision was upheld on appeal. The 8th Circuit pointed out that Shanklin could not establish a prima facie case of race discrimination because she was unable to show that she met the Board's legitimate expectations, which is a required element of a discrimination case. Even with a prima facie case, however, Shanklin's race discrimination claim failed, because the Board offered a legitimate, non-discriminatory reason for her discharge -- Shanklin did not improve in the specific deficient areas in which she repeatedly was counseled and was unable to show that said proffered reason was a pretext for discrimination.

    This case makes an interesting point for employers: a progressive course of action formulated to assist in an employee's improvement can form the basis of a defense to a charge of discrimination. In this case, the school provided verbal warning, a written critique, a performance improvement plan, review by an evaluation team, and a hearing on the issue, all prior to the decision to discharge the employee. While every employee situation is different, and employers' resources vary, this case provides a reasonable outline to follow in formulating an adequate plan of action.