Do Positive Performance Evaluations Matter In Wrongful Termination Cases?
Having litigated wrongful termination cases for more than two decades, our wrongful termination lawyers in Citrus County, Florida have learned that unsatisfactory or poor work performance is the most common reason proffered by employers for terminating employees. For several reasons, employers rely upon unsatisfactory or poor work performance as a go-to reason for termination.
First, employers know that problems and deficiencies can be found in the work performance of almost every employee. When targeting employees for termination for a discriminatory or retaliatory reason, unsatisfactory or poor work performance is a convenient, ready-made pretextual mask. Second, employers know that employee work performance is not evaluated or assessed by objective criteria for the vast majority of employees. Instead of objective criteria, employee work performance is evaluated and assessed based on the subjective opinions of supervisors. Finally, employers know their supervisors will provide necessary testimony regarding an employee’s alleged unsatisfactory or poor work performance. Indeed, employers know they will have legions of self-interested supervisors eager to parrot the company line. Thus, employers know they have control over the evidence that will be used to establish an employee’s unsatisfactory or poor work performance and, thus, control over the evidence that will be used to justify the employee’s termination in the litigation context.
Significance Of Positive Performance Evaluations
Although generally based on the subjective opinions of supervisors, positive work performance evaluations often provide a basis for employees to establish their work performance was satisfactory, if not exemplary. At a minimum, positive work performance evaluations can be used to undermine or discredit an employer’s assertion of unsatisfactory or poor work performance. The timing of positive performance evaluations is also significant in discriminatory or retaliatory discharge cases. When employees receive positive performance evaluations from supervisors other than those with discriminatory or retaliatory animus, such evidence demonstrates that the proffered reason of unsatisfactory or poor work performance is based on a discriminatory or retaliatory motive.
In this article, our wrongful termination lawyers in Citrus County, Florida explain how the decision in Feldwisch v. Wormuth, 22-cv-11645 (E.D. Mich. Jan. 29, 2024) demonstrates that positive performance evaluations can be used to undermine an employer’s assertion of poor performance and establish a discriminatory discharge.
Wrongful Termination Lawsuit
In that case, a woman named Feldwisch brought an employment discrimination lawsuit against her former employer, the Army’s Combat Capabilities Development Command (“CCDC”), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). Title VII prohibits employers from discriminating against employees on the basis of age. The ADEA prohibits employers from discriminating against employees on the basis of age. Feldwisch claims that she was fired because of her sex in violation of Title VII and because of her age in violation of the ADEA.
In April 2019, Feldwisch was hired by the CCDC for civilian employment to work as the Chief of Protocol for the Ground Vehicles System Center (“GVSC”). According to Feldwisch, she recognized almost immediately that leadership at the GVSC was biased against her because of the institution’s culture of disrespect, harassment, and hostility towards women and older individuals. Feldwisch states that shortly after completing her new orientation hire, she attended a conference with GVSC leadership. The conference included the GVSC Chief of Staff, the GVSC Assistant Chief of Staff, and a human resources employee, Davis. Feldwisch asserts that the Chief of Staff disrespected and unjustifiably criticized the woman who had administered much of Feldwisch’s orientation, Walsh, “based on her sex and because she is an older woman.” Feldwisch further asserts that the Assistant Chief of Staff and Davis did nothing in opposition to the Chief of Staff’s behavior. Feldwisch alleges that she complained to the Chief of Staff, Assistant Chief of Staff, Davis, and others to oppose Walsh’s treatment. These complaints, according to Feldwisch, “precipitated a pattern of mistreatment and disrespect” from the Chief of Staff and Assistant Chief of Staff.
Fired For Alleged Poor Performance
Feldwisch alleges that her mistreatment continued throughout her time at the GVSC, especially from the Assistant Chief of Staff. Feldwisch claims that, at various points, the Assistant Chief of Staff became unjustifiably angry and yelled at her in front of others. Feldwisch also claims that the Assistant Chief of Staff required her to work extra hours without overtime pay or paid time off from work. Feldwisch asserts that the Assistant Chief of Staff would grant requests for paid time off for himself and for male and younger employees.
On September 17, 2019, Walsh filed a complaint of discrimination against the Chief of Staff, Assistant Chief of Staff, and Davis. Eight days later, Feldwisch was called into a meeting with the Assistant Chief of Staff and Davis. During the meeting, according to Feldwisch, Davis stated, “Maybe you do not have the bandwidth to perform your job.” Feldwisch maintains that she had not been informed that her performance was deficient in the five months prior to this meeting.
On October 18, 2017, Feldwisch was terminated for alleged poor performance.
“Glowing Reviews” Undermine Proffered Reason
The CCDC filed a motion with the trial court seeking dismissal of Feldwisch’s discriminatory discharge claim. In denying the CCDC’s motion for dismissal, the trial court determined that Feldwisch had produced evidence sufficient for a jury to find that the CCDC’s proffered explanation for her termination—poor work performance—“has no basis in fact or was not the actual reason for her discharge.”
In support of its decision, the trial observed that Feldwisch “has produced evidence that her performance was satisfactory or better throughout her tenure.” Feldwisch, the trial court pointed out, “received glowing reviews and awards from [the Assistant Chief of Staff] at the midpoint of her employment and received a performance award from other Army personnel shortly before she was terminated.” Although the Assistant Chief of Staff also gave Feldwisch “negative reviews,” they “were completed and signed three months after [Feldwisch’s] discharge.” “This timeline,” the trial court reasoned, “casts doubt that the reviews reflect [Feldwisch’s] performance at the time of her termination.” Because[Feldwisch had “produced evidence to allow a jury to reject the explanation [for her termination] as pretextual,” the trial court concluded that “a reasonable jury could find that [Feldwisch’s] termination was improperly motivated by discriminatory animus.”
Citrus County Wrongful Termination Lawyers
Based in Ocala, Florida and representing workers throughout Florida, our wrongful termination attorneys in Citrus County, Florida have fought for the rights of wrongful termination victims for more than twenty years. If you have been wrongfully terminated or have questions about your rights as a wrongful termination victim, please contact our office for a free consultation with our wrongful termination lawyers in Citrus 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.