Jottings By An Employer's Lawyer

Thursday, July 07, 2005

Just A Reminder About Those Performance Appraisals - Often Known as Plaintiff's Exhibit #1


On first glance the facts don't sound good for the employer. An employee, a frequent complainer of the actions of others, is suspended for violation of a policy. While on suspension she travels to the state discrimination agency with a fellow employee to file complaints. Within 10 days both are fired. The reason for plaintiff's termination -- while she was on suspension the employer discovered "an excessive amount of unfinished work 'hidden' in her desk."

Even without knowing more, one would not be surprised to know plaintiff prevailed on her retaliation claim and the employer did not even challenge the liability ruling on appeal. Ancira Enterprises, Inc. v Fischer (Tx. App. - Austin 6/16/05)[pdf]. But there was more -- in the form of a plaintiff's best friend, the favorable performance evaluation. From a footnote in the opinion, a discussion of her performance review, six months before her termination:
A performance review dated March 30, 1999 reflected that Fischer’s “performance of duties” and “knowledge of duties” was “excellent”; that she had “good” punctuality, and a “very good” attitude. The review noted that Fischer was on the safety committee and “works well with other employees and strives to be a ‘Team Player.’” It recommended that she continue with her current position, but “be available for consideration to a position of more responsibility and advancement within the company.”
It does not mean that the employer's reason for the termination was false, or that the performance appraisal was inflated -- but it does seem unlikely that both are on the mark. And when the rationale for the termination and the performance appraisals diverge is when they become Plaintiff's Exhibit #1.


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