Employment Law Report

Stellar Performance Record Does Not Prove Pretext in Age Discrimination Lawsuit

By Michael D. Hornback

Past performance is usually a decent indicator of future performance . . . but not always. Employees who were once excellent performers have periods of time when, for various reasons, their work product takes a dip. It happens to everyone. However, when a good employee admittedly violates numerous policies of the employer, termination may be warranted, as the Sixth Circuit Court of Appeals recently held in Hughey v. CVS Caremark Corp., 2015 WL 6123550.

clinic-doctor-health-hospitalIn Hughey, the plaintiff was hired by CVS as a Pharmacist in Charge about one month prior to his 40th birthday. For over a decade, the plaintiff was a star performer, receiving “Exceeds Expectations” marks on his annual performance reviews. He was also named the Pharmacist of the Year in his district on two occasions.

As a pharmacist with CVS, the plaintiff was expected to comply with the policies contained in the CVS Operations Manual. Of import in this case were three policies: (1) pharmacists were not to accept payment from a customer who received anything less than the full quantity of the prescription; (2) pharmacists were prohibited from exchanging medicine with non-CVS pharmacies; and (3) the pharmacists were to take several steps upon learning of a dispensing error, including completing an incident report.

The plaintiff violated all of the above-noted policies. He partially filled a prescription and then billed TennCare as if the prescription had been fully filled. On another occasion, he traded medicine with a competitor. Finally, he failed to fill out an incident report related to two dispensing errors.

After conducting a thorough investigation, during which the plaintiff admitted to his violations of the CVS policies, he was terminated.

The plaintiff then filed a lawsuit in the Middle District of Tennessee alleging he was terminated due to his age, in violation of the Age Discrimination in Employment Act (“ADEA”). There was no direct evidence of age discrimination, so the plaintiff relied on circumstantial evidence in an attempt to prove his case. Under this framework, the plaintiff was required to prove that (1) he was at least 40 years of age; (2) he was subjected to an adverse employment action; (3) he was qualified for the position; and (4) he was treated differently from similarly situated employees outside of the protected class.

With regard to the last prong — whether he was treated differently than similarly situated employees — the plaintiff argued that another employee was not terminated after having a poor attendance record, being accused of sexual harassment on multiple occasions, and having decreased performance numbers. The Sixth Circuit noted that the plaintiff failed to show any evidence of these alleged issues with the other employee or how CVS dealt with them. The Court also noted that even if those allegations were taken as true, “they still would do nothing to advance his claim. To satisfy the similarly-situated requirement, a plaintiff must demonstrate that the comparable employee is similar ‘in all relevant aspects.’” To be “similarly-situated,” the individual to whom the plaintiff compares himself/herself must have dealt with the same supervisor, been subject to the same standards, and engaged in the same type of conduct.

The Sixth Circuit determined that the other employee to whom the plaintiff compared himself was not “similarly situated” because the other employee was not accused of violating the same policies that the plaintiff admittedly violated.

Next, the plaintiff argued that his unblemished performance record should have provided him with some leeway to make “a few technical errors” and that his policy violations were nothing more than a mere pretext relied upon by CVS to terminate him. The Sixth Circuit called this argument “unpersuasive.” As the Court noted, “[A] showing of a good employment record is not relevant in determining whether an adverse employment decision was a pretext for age discrimination.”

In the end, the plaintiff’s stellar work performance for CVS could not save him. He admittedly violated the applicable policies and CVS had a legitimate, non-discriminatory reason for terminating him.