?Takeaway: This case highlights the important role that documentation of performance issues and clear, written job descriptions can play if an employee seeks to challenge an employment decision in court. By maintaining detailed records of an employee’s performance deficiencies and by providing candidates with explicit requirements for the positions they seek, employers can minimize potential exposure to allegations of discrimination and retaliation in their decision-making processes. Such foresight can furnish an employer with a strong defense to such allegations, particularly when the employee proves unable to point to any evidence to refute what is in the relevant documents.
?The 1st U.S. Circuit Court of Appeals affirmed summary judgment in favor of an employer on failure-to-promote and retaliation claims by a former employee who was denied a promotion and then lost her job for misconduct. Relying on the employer’s records and other evidence, which the former employee failed to controvert, the court held that a long, well-documented history of inadequate performance and unacceptable behavior rendered the former employee unqualified for the promotion she had sought, based on applicable, written job requirements.
The court further held that the employer’s termination decision was not related to an internal complaint the former employee had made several months earlier. The former employee’s claims therefore could not proceed to trial.
The former employee, who had worked for the employer as a supervisor for approximately three and a half years, was the subject of numerous complaints by other employees. The complained-of conduct included disrespect and favoritism to subordinates, poor communication, and failure to ensure quality control.
The former worker applied for a promotion to a senior production supervisor position. According to a written job description, that position required, among other things, excellent interpersonal skills and communication, leadership qualities, and an ability to ensure compliance with the employer’s procedures. The former employee did not get the promotion.
The former employee later made an internal complaint about a comment she alleged a male manager had made during the selection process for the senior production supervisor position. According to the former employee, the manager said he did not like her, treated her differently because of her gender and held negative views of women in general. She further alleged that the manager said he would make the hiring decision for the senior production supervisor role she sought.
About four and a half months later, the former employee was let go for misconduct. She sued the employer for sex-based discrimination and retaliation.
The district court held there was no evidence from which a reasonable jury could conclude that the termination was because of the former employee’s sex or her internal complaint. The former employee appealed.
Examining the record, which included written material reflecting the many complaints about the former employee, her multiple negative performance evaluations, and repeated feedback she had received regarding her mistreatment of subordinates and failure to ensure quality control, the 1st Circuit affirmed the district court’s summary-judgment decision.
The selection of someone else for the promotion, the appeals court determined, was because the former employee was not qualified for the position at issue, based on the qualifications set forth in the written job description. This conclusion was supported by ample evidence of complaints and negative feedback about the former employee’s performance and behavior, and the former employee was unable to point to contrary evidence sufficient to create any issue for trial.
As to the alleged comments by the former employee’s manager, because the employee was not qualified for the promotion, the comments were not material to the failure-to-promote claim. It was undisputed that the manager did not even participate in the termination decision nearly five months later, precluding any reasonable finding that the termination decision was in retaliation for her internal complaint.
Notably, the 1st Circuit admonished the former employee throughout its opinion for not complying with applicable local rules in the district court, which required her to cite record evidence to support her denials of the employer’s factual assertions. The appeals court reasoned that the voluminous documentary evidence of the former employee’s poor performance and misconduct, coupled with her failure to identify contrary evidence, required affirmance of the district court’s ruling against her.
López-Hernández v. Terumo Puerto Rico LLC, 1st Cir. No. 21-1363 (March 30, 2023).
Adam D. Brown is an attorney in the Philadelphia office of Duane Morris LLP.
