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The AR Group

The Lawsuit That Could Have Been Avoided

By Christine Wilkinson

A recent decision by the United States Court of Appeals for the Third Circuit highlights how inept managerial skills really can cause a lawsuit.? This article examines the circumstances leading to an expensive lawsuit and provides some tips for all managers and supervisors to consider in an effort to avoid such a fate.

In Burton v. Teleflex Inc., No. 11-3752 (3d Cir. Feb. 21, 2013), the plaintiff, Mary Burton, was a 67-year old female who had founded and operated two companies for over 40 years. She sold the companies to the defendant, Teleflex, and then worked for Teleflex as an executive vice president.? According to the employment contract, if at any time Plaintiff chose to resign, she was required to submit a resignation letter.

The case centers around a conversation Plaintiff had with her supervisor, Edward Boarini.? Boarini was dissatisfied with Plaintiff?s work performance for several months, but never addressed the performance deficiencies with Plaintiff.? Their relationship became strained. After almost a year, Boarini informed Burton that he wanted to meet with her.? When Plaintiff asked her supervisor why he wanted to meet with her, he brushed her off.? Plaintiff asked him if he wanted her to resign.? He said that he did not, but Plaintiff repeated the question several times and testified that Boarini did, eventually, state that he thought she should resign.? By the end of the conversation, Boarini testified that he believed Plaintiff had resigned. Conversely, Plaintiff testified that she believed Boarini had fired her.

The parties nevertheless agreed that Plaintiff never actually said she resigned, and that Plaintiff never submitted a resignation letter. Yet, based on Boarini?s account of the conversation, Teleflex?s Human Resources department subsequently sent Plaintiff a letter formally accepting her resignation.? Plaintiff ultimately filed a lawsuit, alleging several claims, including that she had been fired because of her age and gender in violation of the Age Discrimination in Employment Act and Title VII.? Teleflex claimed it did not fire Plaintiff, because Plaintiff had resigned and, therefore, had not been subject to any adverse action. The trial court agreed with Teleflex, and awarded judgment in its favor.? The Third Circuit reversed, finding that because of the factual dispute over whether Burton resigned or was terminated, the case should go to a jury.

What I find intriguing about this case is not necessarily the procedural or technical legal aspects, but how it illustrates how effective managers can often mitigate and sometimes even prevent such risks and liabilities. ?As all managers eventually learn, being a manager is difficult. ?Perfomance management takes time away from a supervisor?s other duties, requires more hours at the office, is stressful, and requires diplomacy, tact, and honesty.? Conflict-adverse individuals are not likely going to neither enjoy being a manager nor likely be an effective manager since people management requires skills that translate to managing people issues, most of which involve conflict.? In the Burton case, the supervisor appears to have intentionally avoided addressing not only the underlying performance issue but also having a clear conversation about the right next steps to take.

How could Boarini have behaved to avoid this lawsuit? By following these simple steps:

  1. Address performance issues as soon as they appear.? The first time Boarini noticed a performance issue, he should have addressed it by meeting with Plaintiff to openly discuss his concerns, providing Plaintiff the opportunity to address those concerns.? Employees can only change or modify errant behavior if they are aware of the need to change.? If managers do not inform employees of perceived or real mistakes or shortcomings, employees are not likely to address those concerns, and the errors or poor work habits are likely to increase.? Candor, honesty and timeliness are critical.
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  2. Be specific and set concrete goals.? Plaintiff?s scope of employment ostensibly was defined under the terms of a written employment agreement.? Given that Plaintiff had founded and operated the companies prior to Defendant?s acquisition, it is likely that her role as an executive vice president required that she continue performing many of the same functions, as an employee.? Good supervisors are generally not subtle. Effective supervisors clearly set out expectations for the employee and identify definite and reasonable goals to be accomplished in specific timeframes.? The facts here illustrate that Mr. Boarini was far from specific in terms of setting goals and certainly not specific in terms of communicating his understanding that Plaintiff had resigned.? Had he been specific in confirming that understanding, the entire conflict would have been avoided well before it had a chance to become a litigable issue.
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  3. De-escalate.? Instead of engaging Plaintiff in a heated and convaluted discussion, Boarini should have taken a moment to step back, and de-escalate the confrontation. As the leader of the company, Boarini should have assumed a leadership position, acknowledged Plaintiff?s frustration, and explained that he would like to discuss the issue when they are both calm and had an opportunity to collect their respective thoughts at a specific time in the near future. Effective supervisors do not engage in shouting matches with subordinates.
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  4. Document, document, document.? Every manager should have a file on each of his or her direct reports. The file should include the employee?s accomplishments, successes and, if applicable, the employee?s weaknesses. Most importantly, the file should contain details of performance management plans and documentation of every conversation the manager had with the employee regarding performance deficiencies. The file is critical to improving an employee?s performance. The file may also prove to be evidence of a non-discriminatory reason for employee discipline in any subsequent lawsuit.

SMART TIP: ?When hiring managers and supervisors, employers should be careful to draft both job descriptions and job postings in a way to attract candidates who are effective communicators, highly organized with strong follow-up skills, and adept at keeping records. It?s important to find someone who understands that people management chiefly involves people issues, which means a fair amount of conflict.

Key words: discrimination, performance management