The Working Paper - June 2013: Employee Evaluations Play Crucial Role in Defending Against Discrimination Claims


Employers commonly compare and rely on the relative performance of employees in making many employment-related decisions, including promotion and termination decisions. Employee performance is a legitimate, non-discriminatory reason for making such decisions. When making performance-based employment decisions, it is important to review an employee’s evaluations and that they accurately reflect any performance deficiencies. A recent federal court decision provides a reminder of the importance of considering evaluations when making performance-based decisions and the danger of ignoring an employee’s positive evaluations and basing a performance-related decision on performance problems not reflected in them.

In the case of Chlystek v. Donovan, No. 11-11928, 2013 U.S. Dist. LEXIS 54444 (E.D. Mich. Apr. 16, 2013), the plaintiff was a 51-year-old employee of the Department of Housing and Urban Development (HUD) who was passed over for a promotion to the position of senior project manager in favor of a younger,  less-experienced co-worker in his mid-20s. At the time he applied for the promotion, the plaintiff had worked for HUD for 16 years and had always received what the court described as “glowing” evaluations. He also had a college degree, an MBA, a certificate in housing and community development, and 13 years of experience as a project manager. The co-worker, who was selected for the senior project manager position, had worked for HUD for only two years immediately after graduating from college. When the plaintiff asked why he did not get the promotion, his supervisors gave him a variety of non-specific and changing explanations, of which included telling him that he was too “compassionate” while the selected co-worker was more “aggressive,” he had a “history of being argumentative,” and that he did not follow directives from supervisors. His supervisors also told him that the decision was based “on the basis of relative ability, knowledge and skills.”

After discovery was completed, HUD moved for summary judgment dismissing the employee’s case, which the court denied. In deciding to let the case go forward to a trial, the court found that the employee had presented sufficient evidence from which a jury could find that HUD’s explanation, that it promoted the co-worker instead of him because the co-worker was better qualified, was a pretext for age discrimination. In support of its decision, the court relied on the fact that not only were the descriptions of the plaintiff’s performance problems, that HUD relied in court, nowhere mentioned in his evaluations, but that in many cases, his evaluations rated him positive for the same attributes that HUD claimed in court were deficient. Because HUD’s claims made in court about the plaintiff’s performance were at odds with what HUD said about his performance in his evaluations, the court found that a jury could conclude that the reasons HUD proffered in court for its decision not to promote the plaintiff were merely after-the-fact justifications that were intended to mask age discrimination.

The court’s decision highlights the importance of employee evaluations in discrimination cases. To increase the likelihood that employee evaluations will help rather than hurt when defending a discrimination claim, employers should ensure that employee evaluations are completed objectively and accurately, and that performance-based employment decisions are appropriately documented. Supervisors should avoid giving positive or “glowing” evaluations just to avoid the discomfort of having to confront an underperforming employee. Evaluations should also be reviewed and revised as necessary so that they actually evaluate those traits that are important in evaluating job performance. Lastly, when defending a discrimination claim, employers should avoid relying on explanations that could be perceived as simply being after-the-fact justifications.