Inconsistent Performance Standards Dooms Defense Case

Over the years, a consistent theme of this column has been that employers need to hold all employees, regardless of protected characteristic, to the same standard in order to avoid even the appearance of discrimination. These are generally “employment words to live by.” Realistically, however, managers often hold more senior employees to a higher standard than they do relative newcomers. While a number of courts recognize this reality, in the recent case of Larison v. FedEx Corporate Services, No. 16-5921 (E.D. Pa. June 9, 2017), the manager’s shifting explanation of her performance standards created a “genuine issue of fact,” which defeated summary judgment.


The fact-pattern is one that is often seen. Justine Larison began working for FedEx as a sales account executive in March 2007 and remained in this position until her termination in July 2015 at the age of 45. Larison’s employment was considered to be generally acceptable for the first five years of her employment until an appreciably younger woman, Stephanie Nardiello, became her manager in 2012, according to the opinion.


Within a year of becoming her manager, Nardiello began to criticize Larison, stating that “she needed to focus on closing new business accounts.” A few months later, in early 2014, Nardiello told Larison that her sales activity was “unacceptable and needs to improve” within the next 60 days, the opinion said. Nevertheless, in June 2014, Nardiello rated Larison’s over-all performance as “generally acceptable” and specifically rated her sales performance as “meets some expectations.” As such, when Nardiello requested the authorization to terminate Larison in August, 2014, FedEx’s human resources adviser denied the request. Instead, Nardiello issued Larison a “warning letter regarding her deficiency in closing new business,” along with a plan to regularly meet with Larison.

Two weeks later, however, Nardiello requested that her weekly coaching meetings with Larison be canceled because Larison was complaining about them. Her request to human resources added, “I plan on pursuing this at the end of her second warning letter on Sept. 29.” The human resources adviser believed that the “this” was Larison’s termination. Larison was not terminated at the end of September 2014. In December, Nardiello issued yet another warning letter to Larison. This, despite the fact that Larison’s sales performance had improved.

This article was originally published by The Legal Intelligencer. Click here to continue reading.

Leave a Reply

Your email address will not be published. Required fields are marked *