Corporate Services, Inc.
208 Kishwaukee St. · Rockford, IL 61104
(p) (815) 962-8367 · (f) (815) 962-0940

Did Sinking Performance or Rising Age Motivate His Abrupt Termination


One of your employees has been with the company for several years. Over that span, they reported to the same manager, who consistently provided positive feedback and good performance reviews. Then, the manager leaves.

Human Resources
Human Resources

The new supervisor is not nearly as pleased with Nicholas Vichio's performance. A performance memo soon follows. Then, there is a performance improvement plan. Finally, a termination of employment.

This 180-degree turn leaves Vichio flummoxed and suspicious that something nefarious could have motivated his termination of employment, perhaps his age, so he sues (Vichio v. US Foods).

Here are a few other facts that raised the plaintiff's antennae:

  • Vichio received his first negative performance review less than a month after his new supervisor's arrival, and there was evidence that he decided to "facilitate" the plaintiff's exit within 25 days at the company.
  • Though the initial performance memorandum purported to allow the plaintiff to improve within 30 days, his new supervisor immediately started looking for a replacement.
  • The company used an outside recruiter who described a candidate about the same age as the plaintiff as "more on the seasoned side." (The defendant did not hire this candidate).
  • When the defendant moved the plaintiff from a performance memorandum to a performance improvement plan (PIP), along with another employee, both received PIPs that were not personalized. Indeed, the defendant used identical language in both, accusing both men of making the same comment that he was "waiting to be walked out."
  • The new supervisor asked another employee to look for "good examples" to use against the plaintiff as grounds for termination, even though the other employee observed the plaintiff performing his duties as required by the job.

To advance a claim of age discrimination to a jury, a plaintiff must demonstrate that whatever reason(s) the defendant has offered to support an adverse employment action is a pretext for discrimination. "Pretext does not require that plausible facts presented by the defendant not be true, only that they [are not] the reason for the employment decision."

Here, the Seventh Circuit concluded that "such a conclusion is possible given that [the plaintiff] presented significant evidence to establish an inference of discrimination and the material facts relied on by [the defendant] to point in the opposite direction are disputed."

Posted In: Quit, Resigned, Termination of Employment, etc.

Want to know more? Read the full article by at The Employer Handbook

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