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Use of Performance Reviews in Defense of Discrimination Claims

Two recent decisions from the Sixth Circuit Court of Appeals highlight the importance of record-keeping in defending discrimination claims.  In each of these two cases, the plaintiffs raised claims of age discrimination, but were unsuccessful in their claims largely due to the fact that their performance reviews and other documents in their personnel files supported the employers’ legitimate reasons for the employment decisions.

In Provenzano v. LCI Holdings, Inc., 663 F.3d 806 (6th Cir. 2011), the plaintiff claimed that she was passed over for a promotion to assistant manager in favor or a less-qualified, younger person.  The plaintiff brought forth evidence that she had worked for the employer for a longer period of time and that she had a higher level of education than the other applicant.  The plaintiff also testified that she had performed the duties of assistant manager from time-to-time when needed to fill in at other store locations.  As part of the plaintiff’s case, she introduced an email from management that raised an inference in the plaintiff’s mind that the company (a retail store) wanted to portray a “younger image” to the public.  In response the employer relied upon the fact that the other applicant had similar qualifications as the plaintiff, but was a better choice because of the plaintiff’s performance history rendered her “not promotable.”  The applicant who received the job had a much stronger performance record than the plaintiff.  More importantly, the plaintiff had also received disciplinary warnings whereas the other applicant had not.  The Court relied, in part, upon the performance issues as documented in the plaintiff’s personnel file to affirm summary judgment in the employer’s favor.

In Lefevers v. GAF Fiberglass Corporation, Case No. 00-5667, (6th Cir. 2012), the plaintiff, age 58, alleged that he was the target of age discrimination.  To support his claim, the plaintiff pointed to comments in the workplace directed to him about when he was going to “retire” and comments about the “elderly employees” in the company.  The company defended the case by stating that its decision to fire the plaintiff was a as result of a reduction-in-force, and that he was selected for termination because of poor performance reviews.  Also in support of its decision, the employer cited to several other individuals who were retained that held similar positions to the plaintiff and were substantially over the age of 40.  The Sixth Circuit affirmed summary judgment in the employer’s favor.  As part of its reasoning, the Sixth Circuit stated that although the plaintiff disputed the assessment of his performance, that dispute could not render the reason for termination pretextual.

The plaintiffs’ performance reviews played a critical role in the Court’s analysis in each of these cases despite the fact that each case contained testimony that could be categorized as direct evidence of discrimination.  This should serve as a reminder to employers to be candid in evaluating employees in all aspects of the job.  It is not only good practice for the day-to-day operations of the business, but may also be beneficial if faced with defending a claim that there was a discriminatory reason for an adverse employment action.  Performance reviews and disciplinary records, if properly kept, can make a difference between obtaining a summary judgment in the employers favor and leaving the decision up to a jury.

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 2316.

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