Evidence: Subjectivity By Itself Is Not Proof Of Unlawful Race Discrimination

by Kirton McConkie PC

The Bible contains the story of Gideon, who pared down an army of 32,000 to a meager 300 to defend his homeland. Gideon wasn’t looking for a large number of soldiers; rather, he was looking for a particular type of soldier. The first cut was made by dismissing those afraid of battle, reducing the number to about a third of the original host. He next tested the vigilance of the remaining group, further reducing the number to 300. This early account of a reduction in force highlights how subjective factors may be useful in making decisions and selections.

There is an ongoing debate about whether employment decisions should be based on objective or subjective factors. Some advocate for the exclusive consideration of objective criteria. These decisions are based on verifiable information or empirical data. Comparisons are made by reviewing mathematically quantifiable information. The consideration of such factors is typically seen as stripping all bias from the decision.

By contrast, subjective decisions are based on the decision maker’s perceptions. Such decisions are often condemned as having been influenced by the decision maker’s feelings, intentions, prejudices, and unconscious stereotypes. Although a person’s tendencies can bear on a decision, there is also value in having someone’s professional judgment and experience affect the outcome.

Most employers understand that using purely subjective factors in employment decisions can be risky. However, as shown by a recent decision from the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Utah employers), courts will not automatically infer unlawful discrimination based solely on the fact that an employer used subjective factors in employment decisions.

Assessing the auditor

Marcus Richardson, an African-American man, was hired to work at the Denver Auditor’s Office in 1983. After some time, he was promoted to internal audit supervisor and became responsible for performing and supervising “compliance audits” for the city of Denver. He also managed a team that assisted him in performing the audits. He often received “exceptional” job performance ratings.

A voter-approved initiative required the auditor’s office to start doing “performance audits.” On January 1, 2008, the auditors, including Richardson and his team, began to perform the audits, which required them to assess whether governmental agencies met their objectives efficiently and effectively.

In May 2008, Dick Wibbens, Richardson’s direct supervisor, gave him an employee evaluation. Richardson was rated “successful” under the new performance audit system, which is one step below the highest level of “exceptional.” The evaluation also focused on areas in which he could improve. Wibbens indicated that he needed to improve in the areas of accepting responsibility for his work, providing increased coaching, and mentoring his team. During 2008 and 2009, Richardson and his audit team completed more audits and identified more money owed to the city of Denver than any other audit team.

In December 2008, Wibbens was replaced by John Carlson, who became the deputy director of audit services and Richardson’s new direct supervisor. Carlson determined that the auditor’s office needed to improve its performance, and he focused on issues such as quality control, writing skills, and timeliness of audit reports. In May 2009, he evaluated Richardson, again giving him a “successful” rating. Richardson was asked to improve in his supervisory role, his written communication skills, and the timeliness of completing audits.

Richardson sent a memorandum to Carlson in response to his evaluation, expressing his disagreement with the review’s conditions. Further, he wrote that “as a black male supervising and working with a diverse group of colleagues, it can be somewhat difficult because employees come from different backgrounds and cultures and in many cases do not always understand or want to understand persons different from themselves. In this rating period, I believe my supervisor has placed a higher standard on me because of this lack of understanding.”

In May 2010, Carlson again evaluated Richardson, once more giving him a “successful” rating. Again, Carlson suggested areas for improvement. He noted that Richardson needed to improve the quality of his written work and the timeliness of his audits and support his audit conclusions with additional evidence. Following this evaluation, Richardson and his team failed to complete several audits before the deadlines.

Performance doesn’t improve under PIP

In August 2010, Carlson expressed his continued dissatisfaction with Richardson’s performance and placed him on a performance improvement plan (PIP). Carlson simultaneously removed Richardson from his supervisory responsibilities, gave him specific goals, and required him to attend weekly meetings to track his performance. The PIP noted that Richardson failed to meet several audit deadlines and needed to improve his writing. During the weekly progress meetings, the evaluators noted grammatical errors, structural flaws, and other errors in his audits, including the omission of five required elements.

In addition, Carlson and another supervisor filed a complaint with their supervisor in which they stated that Richardson was intimidating and threatening. The complaint noted that he pointed a finger in the faces of his supervisors and paced in frustration while complaining that they were treating him unfairly. Disagreeing with the characterization of his performance and behavior, Richardson filed a grievance. While he continued to be employed by the auditor’s office, he also initiated a lawsuit against the office alleging race discrimination and retaliation.

Meanwhile, the weekly meetings continued. Constructive criticism for improving his work product was repeatedly raised with Richardson. Much of the criticism involved his failure to produce satisfactory audits and include the required five elements, persistent grammatical errors in his written work, and untimeliness. Because he disagreed with them, Richardson wouldn’t sign the reports from the meetings.

On October 27, 2010, the auditor’s office issued a pre-termination letter informing Richardson that it was considering terminating his employment because of his failure to show improvement under the PIP. The letter highlighted the areas in which he was to improve and summarized the weekly meetings. It further noted that he failed to meet the established “qualitative and quantitative” standards of performance.

A hearing scheduled for November 8, 2010, allowed Richardson to make a statement and present evidence regarding his performance. He submitted a written response in which he took the position that other than his failure to meet arbitrary deadlines, the auditor’s office had provided no specific examples of his failings. He also noted that other managers missed deadlines.

On November 15, 2010, the auditor’s office discharged Richardson, relying on his failure to meet performance standards and his carelessness in performing his duties. Specifically, the office noted that he had prepared “one of the poorest ‘best and final’ drafts” his supervisor had ever seen. It also noted his supervisors had concluded that he didn’t have the skills necessary to perform more complex performance audits. After the termination of his employment, Richardson amended his lawsuit to claim racial discrimination and retaliation also led to the termination of his employment. The case eventually ended up before the 10th Circuit.

Shifting the burden

To succeed on a disparate treatment claim under Title VII of the Civil Rights Act of 1964, Richardson had to show that the auditor’s office and the city intentionally discriminated against him. He could meet that burden by providing either direct or circumstantial evidence. Because he presented only circumstantial evidence, the court applied the burden-shifting framework for discrimination cases from McDonnell Douglas Corporation v. Green.

Under that framework, Richardson first had to establish a prima facie, or minimally sufficient, case of discrimination by showing that (1) he is a member of a protected class, (2) he suffered an adverse employment action, and (3) the adverse action occurred under circumstances that give rise to an inference of discrimination. If he was able to make that showing, the burden shifted to the auditor’s office to offer a legitimate nondiscriminatory reason for the adverse employment action.

If the employer could articulate such a reason, then Richardson would have to show by a preponderance of the evidence that its reason was a pretext to mask illegal discrimination. Pretext can be shown by weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s offered reason.

Nondiscriminatory reasons

The court concluded that Richardson met his initial burden of making a prima facie case of discrimination. He showed that he is a member of a protected class—i.e., he is African American. Moreover, he suffered adverse employment actions by being placed on the PIP and by having his employment terminated.

The burden then shifted to the auditor’s office and the city, which responded by articulating multiple reasons for the PIP and Richardson’s discharge. Specifically, his work was untimely, he missed several deadlines, and he failed to improve his performance in many ways under the PIP. The court concluded that those were legitimate nondiscriminatory reasons for the adverse employment actions. Consequently, the burden shifted back to Richardson to prove that the employer’s reasons were actually a pretext to hide unlawful discrimination.

Subjective criteria and pretext

The court recognized that the use of subjective criteria can indicate pretext. However, the consideration of subjective criteria alone isn’t evidence that the reason for an adverse action is false. As such, the courts consider the use of subjective considerations on a case-by-case basis.

In this case, the court noted that even if the deadlines were arbitrary and subjective, timeliness wasn’t the only problem with Richardson’s work. The auditor’s office pointed out numerous problems with his audits and his failure to improve or explain his mistakes. The court concluded that “it is clear from the entirety of the record under the [PIP], believed that he did not have the skill set to perform in his supervisory position under the new regime standards, as evidenced by the many instances during the weekly meetings in which his performance was considered substandard to expectations for his position.”

The fact that some of the supervisors’ views were subjective didn’t by itself indicate discrimination. Therefore, the court dismissed the race discrimination claims against the auditor’s office and the city.


The 10th Circuit rejected the retaliation claim for the same reasons. The court concluded the auditor’s office had valid reasons for terminating Richardson’s employment that weren’t based on retaliatory motives. Thus, the retaliation claim was also dismissed. Richardson v. Gallagher, 2014 WL 308956 (10th Cir.).

Lessons learned

Employers will often be safe relying on objective criteria that are measurable. But that doesn’t mean subjective criteria don’t have a place in evaluating employees. When used, such criteria should be applied to all employees fairly and evenhandedly. You should also carefully document any subjective determinations and evaluations just as you would document evaluations based on objective criteria. Further, evaluating employees shouldn’t involve protected characteristics such as race, age, or gender.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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