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Employment & Labor Law FLASHPOINTS December 2018

December 14, 2018Print This Post Print This Post

Amanda Tiebert Collman, Robbins Schwartz, Chicago
312-332-7760 | E-Mail Amanda Tiebert Collman

Positive Performance Evaluations Do Not Necessarily Defeat Employer’s Defense to Discrimination Claims

Defense lawyers have heard the story time and time again — an employee was discharged for legitimate performance and/or conduct issues, but the employee’s underlying performance evaluations actually rate his or her performance as satisfactory or better. This “glitch” often forms the basis of the employee’s discrimination or retaliation claim because it allows the employee to cite his or her positive evaluations as circumstantial evidence of discrimination or retaliation or as evidence of pretext.

This common scenario was addressed by the Seventh Circuit in Abrego v. Wilkie, Secretary of Veterans Affairs, 907 F.3d 1004 (7th Cir. 2018). Importantly, the Seventh Circuit reaffirmed its position that evaluations are not the only evidence considered when deciding whether an employee was performing his or her job satisfactorily — which is a required element of a prima facie case under the method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). Rather, courts must also consider other factors such as insubordination and workplace camaraderie in determining whether an employee was truly performing at a satisfactory level.


Background Facts

Plaintiff Alfredo Abrego was a dental assistant at a Veterans Affairs dental clinic in North Chicago. Upon being hired in June 2011, Abrego was assigned to a dentist with whom he had many conflicts. These conflicts continued until March 2012 when Abrego was reassigned to a different supervising dentist. In July, Abrego received a letter of counseling for three instances of inappropriate conduct, including one that occurred while he had been working for his original dentist. Upon receiving this letter, Abrego filed a complaint with the VA’s Equal Employment Opportunity (EEO) office, alleging race and sex discrimination amounting to a hostile work environment.

Abrego received additional disciplinary actions during the fall and winter of 2012 relating to conduct occurring under his new supervising dentist. Despite this discipline, Abrego received “fully successful” ratings on his 2011, 2012, and 2013 performance evaluations. However, while his overall ratings were good, Abrego did receive specific comments regarding his combative workplace behavior, which had resulted in discipline.

In January 2014, Abrego was suspended for 14 days for illegally recording his supervisor. After receiving that discipline, Abrego filed a second complaint with the VA’s EEO office, alleging that his 2013 evaluation and 14-day suspension were in retaliation for his first EEO complaint.

Abrego continued to engage in inappropriate conduct during the remainder of 2014, which ultimately culminated in his removal effective December 19, 2014. Abrego filed a third EEO complaint alleging gender discrimination, retaliation, and hostile work environment. The VA’s Office of Employment Discrimination Complaint Adjudication ruled against Abrego on all his EEO complaints.

Abrego’s Lawsuit

Abrego filed suit against the VA based on several theories, including race discrimination and hostile work environment, sex discrimination and hostile work environment, and retaliation. The district court granted the VA summary judgment on Abrego’s claims, and Abrego appealed the decision as to his hostile work environment, discrimination, and retaliation claims.

In reviewing summary judgment on Abrego’s race and sex discrimination claims, the Seventh Circuit reiterated the standard set by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), and further affirmed that while Ortiz did not eradicate the McDonnell Douglas burden-shifting approach, such approach is not the only way to assess circumstantial evidence of discrimination.

Using the Ortiz standard, Abrego argued that he had presented sufficient evidence to permit a reasonable fact-finder to conclude he was terminated and suspended as a result of race and age discrimination. Per Abrego, part of such evidence was his positive performance evaluations, which reflected ratings of “fully successful,” thereby demonstrating that his performance was not in fact an issue.

The Seventh Circuit rejected Abrego’s argument, holding that performance evaluations are not the only evidence to be reviewed in determining whether an employee was performing at a satisfactory level. Rather, courts must also look to and consider other factors regarding an employee’s performance, such as incidents of insubordination and workplace camaraderie. Abrego could not survive summary judgment by merely pointing to his performance evaluations when the record contained other evidence of his conduct issues and performance deficiencies. In light of this evidence, the Seventh Circuit determined that Abrego had failed to point to admissible evidence from which a reasonable fact-finder could infer discrimination.

For more information on Employment & Labor Law, see EMPLOYMENT DISCRIMINATION: PRACTICE AND PROCEDURE — 2018 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


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