How many times have you heard LCW attorneys tell you to timely and accurately complete performance evaluations? You likely hear this advice at every Employment Relations Consortium training you’ve attended. A recent case reminds us all how crucial honest performance evaluations and other forms of progressive discipline can be.
In the case of Dickerson v. Board of Trustees of Community College District No. 522, Bobby Dickerson was employed as a part-time janitor by an Illinois Community College District. Between 2005 and 2007, his supervisor gave him written warnings issued for his refusal to perform work assignments, failure to secure job-related equipment, and for leaving the worksite without permission. In 2005, 2006 and 2007, Dickerson applied for full-time positions with the district, but never succeeded. Shortly after his third failed attempt at a promotion, Dickerson complained to the district that he was being discriminated against because of his “personal traits” and a speech defect.
Dickerson then received a performance evaluation in December, 2007 for the period of November, 2006 through November, 2007. Dickerson received “unsatisfactory” ratings in three of the seven performance categories. The supervisor also provided written comments such as, “Dickerson is consistently late for work and needs to improve;” “jobs need to be redone because of not listening to the job instructions;” and that Dickerson “does only the bare minimum to meet job requirements.” Dickerson disagreed with the evaluation and filed a grievance with his union alleging the district gave him the evaluation in retaliation for his exercise of union activities.
In February, 2008, Dickerson filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging the district failed to promote him to a full-time position because it believed he was mentally disabled in violation of the Americans with Disabilities Act (ADA). Dickerson had a below average IQ which indicated “mild mental retardation.”
Shortly after filing the EEOC complaint, Dickerson approached the Vice President of Human Resources and asked what he should be doing differently in order to be promoted to a full-time position. The Vice President replied to the effect of, “you are suing your employer and you should not be suing your employer.”
In July, 2008, Dickerson’s supervisor performed a follow-up performance evaluation. The supervisor noted that Dickerson had not improved in the areas of being a team worker, communicating with his supervisor before leaving a task, or completing his share of the workload. The supervisor also noted in the evaluation that he had verbally warned Dickerson about his unsatisfactory performance several times and that he had personally spoken to Dickerson on “many occasions” about what he needed to do improve. The supervisor recommended termination and the Vice President of Human Resources agreed.
After Dickerson was terminated, he filed another EEOC charge alleging the district’s decision to terminate him was discriminatory. He further alleged the district retaliated against him for filing his discrimination charge. Dickerson later filed a civil suit. The district court granted summary judgment in favor of the district. Dickerson appealed, and the Seventh Circuit Court of Appeals affirmed the judgment in favor of the district.
The court held that under either the direct or indirect method, Dickerson failed to raise a genuine issue of fact that the district had discriminated against him or had retaliated against him, entitling the district to summary judgment.
As an initial matter, the court found that the statement made by the Vice President of Human Resources (that Dickerson should not be suing his employer if he wanted to be promoted) was “imprudent” and could be evidence of retaliatory animus attributable to the district. However, the appellate court found the statement was insufficient by itself to prove direct evidence of discrimination/retaliation in light of the overwhelming evidence that Dickerson’s work performance was the reason for his termination.
More importantly, as the Court noted:
“For a valid discrimination and retaliation claim under the ADA, an employee must show that he was meeting his employer’s legitimate employment expectations, and that he was performing his job satisfactorily.”
In this case, the record demonstrated that as far back as 2005, before Dickerson filed his discrimination complaints, he received warnings from his supervisors for failing to meet his work expectations. The Court also found that Dickerson received two poor performance evaluations that he disagreed with, but that did not result from unlawful discrimination.
This case is a good example of why honest, detailed and timely performance evaluations, verbal counselings, and written warnings are important. Not only does such documentation inform the employee of areas needed for improvement, but it can also be a valuable defense to a meritless claim of discrimination, harassment or retaliation.