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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Do Employers Use Performance Improvement Plans To Mask Discriminatory Discharge Decisions?

Selective focus of pen,glasses and Termination of Employee letter on a white wooden background.

Having represented employment discrimination victims for more than twenty years, our wrongful termination lawyers in Marion County, Florida know that employers deploy an arsenal of weapons to justify discriminatory termination decisions. The weapons used by employers to justify discriminatory termination decisions include unwarranted negative performance evaluations, unjustified disciplinary action, soliciting co-worker or customer complaints, unrealistic performance expectations, withholding work-related assistance, and setting employees up for failure. When seeking to justify discriminatory termination decisions, the performance improvement plan is perhaps the most favored weapon of employers. When employers deploy this weapon, the employee’s termination is usually predetermined and the employee’s actual performance while under the performance improvement plan does not really matter.

In this article, our wrongful termination lawyers in Marion County, Florida explain how the alleged facts in Vichio v. US Foods, Inc., 88 F.4th 687 (7th Cir. 2023) are illustrative the ordeal many employees experience when employers deploy performance improvement plans to justify termination decisions.

Wrongful Termination Lawsuit

In that case, a man named Vichio brought a wrongful termination lawsuit against his former employer, US Foods, Inc. (“US Foods”), pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA makes it an unlawful employment practice for employers to discriminate against employees on the basis of age. Vichio alleges that US Foods terminated his employment because of his age in violation of the ADEA.

From March 2013 until October 2017, US Foods employed Vichio as a night warehouse supervisor. In all but his final year at US Foods, Vichio received positive performance evaluations. The vice president of operations, Drayton, viewed Vichio as one of the best night supervisors at the warehouse where Vichio worked. Drayton heard from the director of operations, Hunter, and Vichio’s direct manager, Delhaye, that they too saw Vichio as a top employee. The final performance review Vichio received during Drayton’s term, issued in March 2016, was positive. Vichio’s managers marked him as “exceeding expectations” in almost every category.

Drayton left US Foods in November 2016. In December 2016, Delhaye gave Vichio another positive performance review, rating him as “on target.” But things changed in January 2017, when US Foods hired a new vice president of operations, Zadlo, who was 37 years old at the time. Less than a month after Zadlo’s arrival, Vichio—54 years old at the time—received his first negative performance review. Delhaye marked Vichio as “developing” in several areas. Two days after this review, and only 25 days after joining the company, Zadio placed Vichio on a performance plan to “facilitate” Vichio leaving the company.

Employee Performance Improvement Plan

In June 2017, Delhaye gave Vichio a performance memorandum directing him to improve his conduct within 30 days. Delhaye prepared the memoranda from an outline he obtained from Zadlo. After receiving the performance memorandum, Vichio checked in daily with Delhaye to ensure that his job performance was meeting the company’s expectations. Delhaye assured Vichio that Vichio was doing just fine. Despite this, at the end of the 30 days, US Foods placed Vichio on a performance improvement plan.

Initially, Delhaye was responsible for administering the performance improvement plan. But Zadlo quickly became dissatisfied with Delhaye’s pace and instructed Hunter to take over. This prompted Hunter to start documenting ways in which Vichio’s performance was deficient. In one email Hunter sent to Zadio shortly after assuming Vichio’s discipline supervision, he noted that Vichio had correctly ordered a selector to reassemble an incorrectly stacked pallet at the warehouse. After explaining that Vichio had performed his job correctly, Hunter told Zadio, “So that would not be a good example.” In the same email, Hunter said that he would “get downstairs and see what these guys are not doing today.”

While Vichio was on the performance improvement plan, US Foods hired an outside firm to recruit two new night warehouse supervisors. The recruiting company’s agent, Harris, communicated with Zadio on a weekly basis about his criteria for the position. One candidate Harris discovered was approximately the same age as Vichio. In an email to Zadlo, Harris said that the candidate was “more on the seasoned side.” Zadlo gave the candidate an interview but ultimately did not hire him.

US Foods fired Vichio in October 2017. Two months later, Zadlo selected a 43-year-old-hire—11 years younger than Vichio—to replace Vichio as a night warehouse supervisor.

Termination Was “Predetermined”

The trial court dismissed Vichio’s age discrimination claim. On appeal, the U.S. Seventh Circuit Court of Appeals reversed the trial court’s decision and reinstated Vichio’s age discrimination claim. In reversing the trial court, the Seventh Circuit rejected US Foods’ argument that Vichio “cannot show that the performance improvement plan was a pretext for age discrimination” and found that “there is significant evidence in the record to support a reasonable inference that US Foods used Vichio’s performance as a pretext for discrimination.”

In support of its finding, the Seventh Circuit observed that “Vichio’s record at US Foods was virtually pristine until Zadlo arrived.” The appellate court noted that Drayton considered Vichio an “exemplary worker” and Vichio’s managers “saw him as a top employee.” “Drayton’s view of Vichio’s performance,” the court of appeals reasoned, “is relevant because Zadio make quick work of Vichio’s career at US Foods.” The appellate court explained that it “cannot ignore that Vichio received his first negative performance review less than a month after Zadlo’s arrival and that Zadio decided to ‘facilitate’ Vichio’s exit from US Foods within 25 days at the company.” “All of this even though Zadio testified,” the court of appeals pointed out, “he was unsure whether ‘he could have started to form an opinion’ about Vichio’s performance within a month of arriving at US Foods.” An admission all the more damaging, the Seventh Circuit determined, by evidence that “Vichio’s immediate supervisors did not share Zadio’s purported concerns with Vichio’s performance.”

In further support of its finding, the Seventh Circuit observed that “though the initial performance memorandum purported to give Vichio an opportunity to improve within 30 days, Vichio’s termination seemed to be predetermined.” The appellate court pointed out that “Zadlo immediately started looking for a night warehouse supervisor—a replacement hire.” “Indeed,” the court of appeals noted,” it did not matter during this time that Vichio checked in daily with his immediate supervisor, Delhaye, about his performance and Delhaye reassured Vichio that he was meeting expectations.” Then “at the end of the 30 days, the appellate court explained, “Zadio still put Vichio on a performance improvement plan and said in no uncertain terms that the goal of the plan was to ‘facilitate’ Vichio’s ‘decision’ to quit.” Based on this evidence, the Seventh Circuit concluded, “a jury could reasonably find that Zadlo was not content with simply putting Vichio on a performance improvement plan: he wanted to expedite Vichio’s ultimate termination and create a document trail in the process.”

Marion County Wrongful Termination Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our wrongful termination attorneys in Marion County, Florida have fought for the rights of wrongful termination victims for more than twenty years. If you have been wrongfully fired or have questions about whether you have been wrongfully fired in violation of federal employment discrimination law, please contact our office for a free consultation with our wrongful termination lawyers in Marion County, Florida. Our employee rights law firm takes wrongful termination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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