The article below is a good reminder if what can happen when we fail to remember what we have told an employee in their annual/semi-annual evaluation.

More often than not, an evaluation turns into a document that says what we want our employee to be. Often evaluations are not honest. A supervisor believes if he says nice things about an employee; hard worker, productive, honest, creative, etc., that the employee will do everything possible to mirror what the supervisor has written. This does not happen, the employee doesn’t change at all.

Here’s the problem, three months after the evaluation the employee is discharged for not being lazy, unproductive, dishonest, uncreative, etc., and the employee uses the past performance evaluation in his law suit for wrongful termination.

10th Circuit: Positive Evaluations Raise Doubts About Employment Decision

A performance-based employment decision that is inconsistent with the employee’s past performance evaluations may be evidence of pretext, the 10th U.S. Circuit Court of Appeals held.

In 2005, Boeing Co. sold its Wichita, Kan., aircraft plant to Spirit Aerosystems Inc. Because Spirit had no employees of its own, it relied on Boeing’s supervisors to recommend which Boeing employees to hire after the takeover. Walt Galloway, supervisor for the loft tooling unit, recommended that Spirit hire three of the five employees from that unit. James Woods, who was not selected for hire, sued both Boeing and Spirit for age discrimination under the Age Discrimination in Employment Act.

Woods had worked in Boeing’s Wichita plant since 1978. Galloway became Woods’ supervisor in April 2003. In his only evaluation of Woods’ performance, Galloway rated Woods as “met all expectations” in all categories including skills, knowledge, quality, productivity and team abilities. Galloway also wrote “you have performed well” and “keep up the good work.” Two of the other members in the loft tooling unit received better ratings than Woods, and the remaining two received the same ratings as Woods.

When Spirit asked for hiring recommendations, Galloway selected 17 of the 24 employees he supervised. All seven of the employees not selected were 48 years old or older. In Woods’ unit, Galloway recommended that Spirit hire the youngest of the three employees with the lower performance ratings.

According to Galloway, Woods was not recommended for hire because of his “limited skills/low quality/low productivity/marginal teaming abilities.” Woods claimed he was not recommended because of his age; he was 55.

The trial court dismissed Woods’ claims, and the 10th Circuit reversed.

The court stated several reasons to question the truthfulness of Galloway’s explanation for not recommending Woods. First, Galloway used the same criteria to recommend against hiring Woods that he used to conclude in his evaluation that Woods was meeting all expectations. Second, Galloway’s assessment that Woods had “marginal teaming abilities” was not based on any objective criteria. Third, all of the employees that Galloway recommended against hiring were 48 or older.

The court held that a jury must evaluate these facts and decide whether Galloway’s reasons for recommending against Woods’ hire were truthful or whether the decision was really based on Woods’ age.

The 10th Circuit’s decision was unanimous, but one of the judges on the panel expressed reluctance. Judge Anderson stated that “[t]his is a very thin case,” and although he agreed with the result, he could not find any prior cases with such little evidence of discrimination.

Woods v. The Boeing Co., 10th Cir., No. 07-3358 (Dec. 8, 2009).

Professional Pointer: Plaintiffs in employment discrimination cases often point to past positive evaluations to show that the employer’s unfavorable action was dishonest or “pre-textual.” Because it is a natural human tendency to sugarcoat and avoid confrontation, managers must be trained, monitored and encouraged to give accurate, candid and honest feedback to employees in performance assessments. When making a termination decision based on performance, prior performance evaluations should be carefully scrutinized for inconsistencies. If the employer makes a decision based on a decline in performance, the employer should document those changes. This case is a stark reminder that courts will often allow an employment discrimination case—even a weak one—to go to trial if the employer’s reasons for making an unfavorable decision are inconsistent with prior documented performance assessments.

Michael A. Warner Jr. and Abizer Zanzi are attorneys with Franczek Radelet PC, a Worklaw® Network member firm in Chicago.

This article should not be construed as legal advice.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.