Peyton S. Irby, Jr., Stephen R. Cupp, and Susan Fahey Desmond, Editors
Watkins Ludlam Winter & Stennis, P.A.

Vol. 15, No. 1
April 2008

PERFORMANCE STANDARDS

Do you give problem employees 'action plans'?

In the following case, an employer gave an employee an action plan to improve her performance. Unfortunately, it ended in her termination and a lawsuit. Let's take a look.

Facts

Tatanisha Pickens, who is African American, worked for the Vaiden Community Living Center as a social services director and admissions director. Kelly Faulkner, the facility's administrator, and a regional director, Billy Daves, assigned Pickens an action plan that required her to meet certain performance goals. If she didn't meet them, she would be disciplined or terminated. The action plan was supposed to last a month, but Pickens was terminated after 23 days. She was replaced by Melissa Acy, who is white.

Pickens argued that Vaiden unfairly evaluated her work performance and didn't give her the full 30 days to complete the action plan. The court found that since it wasn't involved in the day-to-day management, it was difficult for it to determine whether Vaiden or Pickens was correct about the necessity of the action plan or whether Pickens had sufficient time to meet the plan's requirements.

The court did note that while the termination occurred 23 days into a 30-day action plan, Pickens didn't come forward with any evidence that her race, rather than Vaiden's concerns regarding her work performance, was a motivating factor in the termination. She admitted that the company had tried to get her to agree to take on fewer responsibilities but that she had refused. She also admitted that before the action plan, Faulkner had discussed deficiencies in her work performance.

Favoritism allegation

Pickens made unsubstantiated allegations that Daves had a "preference for white women," which motivated his decision to fire her. She had no proof, however. She did allege that Daves wanted to terminate her so he could hire Acy because she felt they had a "social relationship." The court noted that even if that was true, such a claim wouldn't be sex discrimination because favoritism, while unfair, disadvantages both sexes alike for reasons other than gender. Finally, the court noted that the supposed evidence of favoritism Pickens was to present was extraordinarily weak and that her attempt to make such a claim lost her credibility with the court. Pickens v. CLC of Vaiden, LLC, U.S. District Court, Northern District of Mississippi, 2008 WL 480008.

Bottom line

While this case discusses other issues, the issue of action plans is a troubling one for many employers. Some employers simply don't use them. But they're valuable in that they memorialize employee issues and problems and can be very useful in defending a case should the employment relationship not work out. Of course, from an HR standpoint, the preference is for the employee to improve her performance and perform at a high level. That saves you the trouble, and possible litigation, of terminating an employee and then going out into the market to find a new one. In this day and age, you have to create a "paper trail" because an ex-employee and her lawyers will attach great weight to your failure to document any shortcomings.

Copyright 2008 M. Lee Smith Publishers LLC

MISSISSIPPI EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Mississippi employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Note: The Mississippi Bar requires the following statement: Listing of the previously mentioned areas of practice does not indicate any certificate of expertise therein.