Jottings By An Employer's Lawyer

Wednesday, March 26, 2003

Employer's Evidence of Poor Performance Not Enough At Prima Facie Stage

In Ellison v. Sandia National Laboratories (10th Cir. 3/3/03), the court reminded lower courts that establishing the element of a prima facie case under McDonnell Douglas, especially under the criteria that the employee was doing satisfactory work was not meant to be difficult. In fact, the court found it error to consider the employer's evidence of poor work performance at the prima facie stage. All that was necessary for the plaintiff was to show by his own testimony his work was satisfactory or that he still possessed the objective credentials for the position. All is not lost however, nor was it here, because the employer's evidence of unsatisfactory performance which was not rebutted as pretext, was sufficient to carry the day.

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