Consistent Documentation Of Poor Performance Defeats Employee's Age Discrimination Claim

On January 9, 2024, in Krassowski v. Bloomberg L.P., the New Jersey Appellate Division unanimously affirmed a trial court’s grant of summary judgment in favor of an employer that had well-documented proof of an employee’s continued failure to meet the expected level of performance for his role. The court found that the employee’s age discrimination suit faltered as he failed to demonstrate age played a role in his termination.

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from refusing to hire, employ, or discharge an employee unless justified by lawful considerations other than protected characteristics such as age. Under the NJLAD, an employee must prove that they were 1) a member of a protected group 2) the job performance met the employer’s legitimate expectations 3) they were terminated and 4) the employer replaced or sought to replace them.

Facts

Krassowski, a Software Engineer-Senior in Bloomberg’s Research & Development Department, filed a lawsuit against Bloomberg alleging that he was wrongfully terminated on the basis of his age. Krassowski alleged Bloomberg had a “scheme” intended to replace older workers with persons who were younger, less experienced, and less qualified. At the time of his hiring, Krassowski was 53 years old. Krassowski interviewed with a 43 year old Engineer Team Leader who later became Krassowski’s manager.

In his 2015 interim performance review, Krassowski’s manager noted that he could accomplish some of his tasks faster. In his 2015-year end review, Krassowski’s manager noted that Krassowski’s deliverables took longer than someone with his experience and knowledge and that the quality of his work was below management’s expectations. Krassowski did not receive a base salary increase in 2016.

In his 2017, 2018, and 2019 reviews, Krassowski received the lowest overall rating in his team. His year end reviews provided that Krassowski struggled to understand certain concepts and did not follow implementation of agreed upon processes. The reviews also provided that for Krassowski’s level of seniority, he was expected to understand the capabilities and limitations of software, and also be more thorough and diligent.

Around October 2019, Krassowski met with his managers and an employee relations and compliance specialist to discuss his performance. Krassowski was given the option to either leave the company or start a performance improvement program (PIP). Krassowski opted to start a PIP to demonstrate that he was making progress and contributing to the level that his managers thought was appropriate for a senior member of their team. Although Krassowski was given additional opportunities to prove his capabilities, his managers determined that tasks assigned during his PIP continued to demonstrate Krassowski’s inability to complete tasks in a timely manner and his need for help to complete tasks for his level of seniority. As a result, Krassowski was terminated.

Krassowski argued that Bloomberg did not fire younger employees who had received similar performance critiques. He also alleged hiring two younger contractors in 2018, was also part of Bloomberg 's plan.

The trial court granted Bloomberg's motion for summary judgment finding that Bloomberg presented legitimate reasons for firing Krassowski and Krassowski failed to demonstrate that Bloomberg had a plan to push him out based on his age.

Appellate Division Decision

The Appellate Division determined that Krassowski was unable to prove a case of discrimination because he was unable to prove that age played a significant role in his termination. The court noted that Krassowski had not received any promotions, did not receive a salary increase since 2016, and had received consistent criticism in his reviews as evidence that Bloomberg did not have a discriminatory intent in determining to terminate Krassowski’s employment. Most importantly, the court found that at the time of Krassowski’s hiring and termination, his manager was over 40 years old. The Appellate Division found that since the ultimate decision maker was over 40 when the employment decision was made, discriminatory intent could not be found.

BOTTOM LINE

The decision once again demonstrates the importance of documenting an underperforming employee’s performance to protect an employer against potential claims of discrimination. Even though a prior employee alleged discrimination under the NJLAD, the court found that there were legitimate non-discriminatory reasons to terminate the employee’s employment.

For more information regarding this decision and how to properly document employee performance to avoid liability, please contact Dina M. Mastellone, Esq., lead Partner of the firm’s Human Resources Counseling & Compliance practice via email via email here 973.533.0777.