TRAITORS IN THE WORKPLACE: HOW NEGATIVE PERFORMANCE EVALUATIONS CAN BE USED AGAINST EMPLOYERS

In the recent case of Toth v. Gates Rubber Co., the Tenth Circuit Court of Appeals set out a framework for assessing retaliation and discrimination claims. Perhaps of equal importance, the Court considered the rather unique question of whether a negative performance evaluation can serve as evidence against you as an employer, in a retaliation claim under Title VII. The answer may surprise you.

THE FACTS

Zora Toth was a 23 year employee of Gates Rubber Company. In that time, she had worked her way from a position in the research library to the materials analysis laboratory. On August 13, 1996, Toth filed a charge of retaliation and unlawful discrimination with the EEOC. Two days later, Toth received the first in a series of negative performance evaluations noting deficiencies in performance and identifying several areas requiring improved performance. These performance evaluations culminated in a 90 day probationary period which began in December, 1996. Under the terms of the probation, Toth was given 90 days to improve performance or face termination. On March 28, 1997, Toth was terminated from her employment with Gates Rubber Company.

THE LAWSUIT

Among other things, Toth sued Gates for retaliation. The retaliation claim was based on Toth’s conclusion that Gates had retaliated against her for engaging in an activity protected by Title VII, namely filing complaints with the EEOC concerning perceived violations by Gates of her Title VII rights. Toth’s retaliation claim was based on the allegation that the negative performance evaluations Toth received after filing the first EEOC charge constituted retaliation that finally culminated in termination. In addressing Gates’ claims that Toth could not prove the retaliation claim she was making in the lawsuit, the court set out an analytical framework for Title VII claims generally, and then explained the additional analysis necessary with respect to retaliation claims. Employers would do well to understand this framework and analysis because it provides a planning mechanism for employers in dealing with their employees.

Under the Title VII analytical framework, the plaintiff/employee must present either direct or indirect evidence sufficient to show intentional discrimination with respect to the adverse employment action. Of course, direct evidence of discrimination is relatively infrequent inasmuch as it is difficult to obtain testimony from those parties committing the infraction that it was their intent to do so. While there is the occasional memorandum or other document that can be used as direct evidence of intentional discrimination, most employers are more sophisticated than to permit such documentation to be generated at all, much less preserved for later use. By far the greater category of evidence used to show intentional discrimination is indirect evidence.

When an employee/plaintiff chooses to use indirect evidence to show intent, that evidence must first be sufficient to establish the basic elements of a Title VII violation. Once the plaintiff has established the basic elements of a Title VII case, the defendant/employer has the opportunity to refute or ameliorate the plaintiff’s evidence of a Title VII violation. To overcome the proof presented by the plaintiff/employee, the defendant/employer must articulate a legitimate, non-discriminatory reason for the adverse employment action. In other words, once the plaintiff has established the basic elements of its Title VII claim, the defendant must present evidence that its actions relative to the plaintiff’s employment were legitimate and non-discriminatory. If the employer is able to satisfy this burden, the plaintiff/employee gets another chance to show that the employer had a discriminatory motive for its actions, or that the employer’s explanation for its adverse employment action is a pretext for discrimination.

In trying to prove that the reasons given by the employer for its adverse employment action are a pretext for discrimination, the plaintiff/employee may rely on circumstantial evidence. In the Toth case, the court indicated that pretext may be shown by revealing weaknesses, implausibility, inconsistencies, incoherence, or contradictions, in the “legitimate reasons” given by the employer for the adverse employment action. All these circumstantial tidbits may be relied upon by a fact finder to conclude that the explanation given by the employer is unworthy of credence. This is the plaintiff’s objective in trying to establish that the employer’s reasons for the adverse employment action were a pretext for discrimination.

Using this framework, the court analyzed the retaliation claims of Ms. Toth. The court first outlined the basic elements of a retaliation claim–the employee must prove (1) she was engaged in protected opposition to discrimination or participated in a proceeding arising out of discrimination; (2) an “adverse employment action” was taken by her employer subsequent to the protected activity; and (3) there is a causal connection between the employee’s activity and the “adverse employment action” taken by the employer.

The parties agreed that Ms. Toth had engaged in protected opposition to discrimination by filing the EEOC charge of retaliation against her employer. The parties disagreed, however, as to what constituted the “adverse employment action” suffered by Ms. Toth subsequent to filing the EEOC charge. The employer argued that the “adverse employment action” was the termination that occurred eight months after the first EEOC charge was filed. Ms. Toth argued that the “adverse employment action” was the negative performance evaluations she received after filing the first EEOC charge.

In addressing this issue, the court was careful to point out that in the Tenth Circuit, the term “adverse employment action,” as used in 42 U.S.C. § 2000e-2(a), is liberally construed. The court went on to define “adverse employment action” as an action that causes an “adverse impact on future employment opportunities.” Based upon this definition and its liberal construction of the term “adverse employment action,” the court concluded that the employer’s negative performance evaluations of Ms. Toth, followed by her termination based on those negative performance evaluations, was within the meaning of “adverse employment action” as contemplated by 42 U.S.C. § 2000e-2(a). The court agreed that Ms. Toth’s termination of employment was an “adverse employment action” under Title VII, but also reasoned that it was not the only “adverse employment action” taken against Ms. Toth. In reaching this conclusion, the court noted that the first negative performance evaluation was given only two days following the filing of Ms. Toth’s first charge of discrimination with the EEOC, and that similar negative evaluations followed as Ms. Toth supplemented her EEOC claims against the employer.

Having addressed the second element of the basic claim of retaliation, the court turned its attention to the third element. In discussing how a claimant might establish a causal connection between the employee’s protected activity and the “adverse employment action” taken by the employer, the court concluded that such a connection can be shown by evidence of circumstances that justify an inference of retaliatory motive. By way of example, the court indicated that circumstances under which the protected conduct is closely followed by an adverse employment action would suffice to establish the causal connection necessary to satisfy the third element of a retaliation cause of action. As noted earlier, the employer had argued, based upon its theory that the adverse employment action at issue was Ms. Toth’s termination from employment, that the eight month lapse between the filing of Ms. Toth’s initial EEOC charge and the actual date of her termination was sufficiently attenuated to overcome any inference of retaliatory motive. The court refrained from considering the employer’s position on this subject because the “adverse employment action” relied upon by the Court was not the termination of Ms. Toth, but the negative performance evaluations upon which her termination was based. Citing the temporal relationship between the first negative performance evaluation and Ms. Toth’s first EEOC charge of discrimination, the court concluded there was sufficient inference of retaliatory motive to justify Ms. Toth’s claim of retaliation.

THE LESSON

Aside from the valuable planning information to be gleaned from the analytical framework for a Title VII claim, and the outline of elements necessary to establish a basic case of retaliation, employers can take a further lesson from the plaintiff’s use of her negative performance evaluations. While it is true that negative performance evaluations are frequently necessary for an employer to justify its termination of employees, employers must be very careful to evaluate the motivation behind the negative performance evaluation. Employers must be certain that the negative evaluation is not motivated by discrimination or an intent to retaliate against an employee for engaging in some protected activity. In the Toth case, the protected activity was filing an EEOC charge of discrimination. Had the negative performance evaluations preceded the EEOC charge of discrimination, or come at some more attenuated time, the employer would have had a far more reasonable chance of overcoming Ms. Toth’s claim that the negative performance evaluations she received were motivated by the employer’s desire to retaliate for her charges of discrimination.

Employers must act carefully when dealing with employees engaged in protected activity under Title VII. Competent legal advice must be sought concerning how best to address such situations, even under circumstances where the employee’s job performance would otherwise justify termination. Avoiding the potential ramifications of an ill-timed or ill-motivated “adverse employment action” is one way employers can protect themselves from the consequences of Title VII.

The court first addressed the discriminatory discharge claim, noting that the basic elements of that claim are (1) that the employee is a member of a protected class, (2) that the employee was still qualified for the job from which she was terminated, (3) that the employee was the subject of an adverse employment action, and (4) that the employee was treated less favorably than employees outside the protected group. In the Toth case, the parties agreed that Ms. Toth was a member of a protected class (female and Yugoslavian) and that she was also the subject of an adverse employment action (terminated). The court turned its analysis to the second and fourth elements, addressing first whether Ms. Toth was qualified for the job from which she was terminated. Proof of qualification for the job she was performing at the time of termination may be satisfied in the initial instance with credible evidence that she continued to possess the objective qualifications she had when she was hired to the position from which she was terminated, or by the employee’s own testimony that her work was satisfactory or that the position held at the time of termination had been so held for a significant period of time. Interestingly, the court concluded that an employee’s own testimony of satisfactory performance is sufficient in the initial instance to satisfy her burden of proof as to whether she was qualified for the position from which she was terminated, even when that testimony is disputed by her employer.

The court next turned to the issue of whether Ms. Toth was the subject of disparate treatment, vis-a-vis other employees outside the protected group. This basic element may be satisfied in the first instance by proving (a) she was treated less favorably than similarly situated employees who do not share her protected attributes; or in a discriminatory discharge case (b) by demonstrating that she was replaced by someone outside the protected class, or (c) demonstrating that the position was not eliminated. Proof of any one of these three elements is sufficient to satisfy the plaintiff’s initial burden of proving that she was the subject of disparate treatment by her employer.

Satisfied that Ms. Toth had put forth sufficient evidence to overcome the employer’s claim to the contrary, the court reinstated Ms. Toth’s discriminatory discharge claim, sending it back to the district court for further proceedings.

The court first addressed the discriminatory discharge claim, noting that the basic elements of that claim are (1) that the employee is a member of a protected class, (2) that the employee was still qualified for the job from which she was terminated, (3) that the employee was the subject of an adverse employment action, and (4) that the employee was treated less favorably than employees outside the protected group. In the Toth case, the parties agreed that Ms. Toth was a member of a protected class (female and Yugoslavian) and that she was also the subject of an adverse employment action (terminated). The court turned its analysis to the second and fourth elements, addressing first whether Ms. Toth was qualified for the job from which she was terminated. Proof of qualification for the job she was performing at the time of termination may be satisfied in the initial instance with credible evidence that she continued to possess the objective qualifications she had when she was hired to the position from which she was terminated, or by the employee’s own testimony that her work was satisfactory or that the position held at the time of termination had been so held for a significant period of time. Interestingly, the court concluded that an employee’s own testimony of satisfactory performance is sufficient in the initial instance to satisfy her burden of proof as to whether she was qualified for the position from which she was terminated, even when that testimony is disputed by her employer.

The court next turned to the issue of whether Ms. Toth was the subject of disparate treatment, vis-a-vis other employees outside the protected group. This basic element may be satisfied in the first instance by proving (a) she was treated less favorably than similarly situated employees who do not share her protected attributes; or in a discriminatory discharge case (b) by demonstrating that she was replaced by someone outside the protected class, or (c) demonstrating that the position was not eliminated. Proof of any one of these three elements is sufficient to satisfy the plaintiff’s initial burden of proving that she was the subject of disparate treatment by her employer.

Satisfied that Ms. Toth had put forth sufficient evidence to overcome the employer’s claim to the contrary, the court reinstated Ms. Toth’s discriminatory discharge claim, sending it back to the district court for further proceedings.

Steven K. Metcalf