Hard to challenge poor performance evaluations in employment discrimination cases

A common issue in employment discrimination cases is how to prove pretext when management says it fired the plaintiff for poor job performance. It is usually not enough for the plaintiff to simply disagree with the employer's assessment. It's also difficult to do this when the plaintiff has bad performance evaluations. This case tells us how it can all shake out.

The case is Davies v. New York City Department of Education, a summary order decided on April 25. Plaintiff says her teaching performance was unfairly evaluated after taking FMLA leave. The employer says there was no retaliation, pointing to the school's "numerous unsatisfactory ratings of Davies's classroom conduct and complaints from students and teachers regarding Davies's performance from March 2008 to April 2009." From that evidentiary proffer, plaintiff cannot win unless she can show these poor evaluations were false. The Court of Appeals (Winter, Parker and Hall) summarizes plaintiff's argument:

Davies does not challenge the substance of the unsatisfactory evaluations. Instead, she claims that for the past twenty years she has had a sterling performance record and the EBA’s timing and close scrutiny of her performance is circumstantial evidence that the EBA was deliberately developing a case against her.

That's one way to challenge poor evaluations. I say this because courts are reluctant to second-guess job evaluations, especially those that require specialized knowledge, like in the field of public education. The Court of Appeals is not buying plaintiff's argument, though.

Davies cannot use her past performance to shield her from two years of unsatisfactory performance evaluations. As for the timing and frequency of her performance reviews, the EBA conducted its first formal observation of Davies’s class on March 6, 2008. It subsequently continued to observe her classroom performance to evaluate whether she was implementing recommendations for improvement, but Davies continued to perform poorly and received an overall unsatisfactory rating for the 2007-2008 and the 2008-2009 school years. We have been clear that temporal proximity between protected activity and an adverse employment action, alone, is insufficient to establish pretext, and nothing about the timing and number of evaluations suggests a retaliatory intent as opposed to normal oversight of a less-than satisfactory teacher.

So what does this mean for plaintiffs and their attorneys? When the lawyer meets with the potential client for the first time, ask about the performance reviews. Even if the potential client says they were fine, take a look at them. Contemporaneous performance reviews are the best measure of how the plaintiff was performing her job. At least that's how the courts see it. If the reviews are problematic, the case is going to be problematic.