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Conflicting Performance Evaluations Can Interfere with Performance-Based Terminations

By Benjamin P. O’Glasser  7/2/2014
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A district court improperly dismissed a former employee’s unlawful discrimination and wrongful termination claims where there was some evidence, including from a third-party auditor, that the employee’s performance was not uniformly deficient, the 11th U.S. Circuit Court of Appeals held.

G4S Government Solutions (and its predecessor) employed Cegeste Barthelus from 1997 until his termination in 2011. Barthelus is Haitian and black—the only such employee at G4S. At the time of termination he was the senior network administrator and sole engineer within the IT department.

In 2012, Barthelus filed suit against G4S alleging unlawful workplace discrimination and wrongful termination. He alleged that, unlike his non-Haitian, white co-workers, he was denied promotions and raises, received negative performance evaluations, and was subjected to negative treatment in the workplace. Further, Barthelus alleged that he had complained to management in 2010 that he was being treated adversely because of his national origin and race.

G4S defended the case by asserting that it terminated Barthelus solely for performance deficiencies. In connection with the company’s motion for summary judgment, the district court considered performance evaluations, a supervisor’s comment that Barthelus had trouble communicating because of his accent, and various business records, including a 2009 third-party audit of the G4S IT department. The district court ruled that G4S introduced sufficient evidence to demonstrate that Barthelus was terminated for performance-related reasons and granted summary judgment in favor of G4S.

On appeal the 11th Circuit reversed, concluding that the district court had improperly discounted evidence of adequate performance. The appellate court cited evaluations categorizing Barthelus as a “valuable employee” and “underpaid.” While there was no indication that the 2009 third-party audit directly addressed Barthelus’s performance, the 11th Circuit concluded that because he “was the Senior Network Administrator and only engineer in the IT Department and the Department’s security posture was ‘above par and secure,’ it can be inferred … that Barthelus’s performance may not have been as uniformly negative as the District Court concluded.”

As a result of the conflicting factual information, the 11th Circuit reinstated Barthelus’ claims. It determined that a judge or jury must weigh the factual evidence and determine whether performance issues were truly the basis for termination or whether there was an impermissible motive in whole or in part.

Barthelus v. G4S Government Solutions Inc., 11th Cir., No. 13-14121 (May 27, 2014).

Professional Pointer: This case presents a stark reminder of how important it is to fully and accurately document ongoing performance issues. Positive remarks in performance evaluations, especially if vague, can contradict and undermine accurate documentation of performance problems. Employers should be mindful of the scope and purpose of third-party audits because of the potential impact on personnel, as their work product may increasingly be used as a proxy for individual employees’ performance.

Benjamin P. O’Glasser is an attorney with Bullard Law, the Worklaw® Network member firm in Portland, Ore.

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