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Friday, June 13, 2014

Haunting Preformance Evaluations


By Tommy Eden

Cegeste Barthelus, a black Haitian, received positive evaluations for over 8 years while working as a senior network administrator for the Florida security firm G4S Government Solutions. He claimed that shortly before his discharge he complained to Human Resources about unfair treatment by the new IT manager because of his race and his Haitian accent. Specifically he claimed that she had created a hostile working environment by treating him differently from younger white co-workers because of his race and Haitian accent as follows: cut his lunch break short; denied vacation days; not provided an office; denied a pay raise; denied a promotion and his supervisor was not allowed to amend an inaccurate performance evaluation. The Florida Federal District Judge had granted the employer summary judgment finding that poor job performance was the reason for his discharge and not his national origin or race. Barthelus represented himself without counsel in the case.

Last month the 11th Circuit Court of Appeals in Atlanta overturned the District Judge's ruing finding there was a jury issue of pretext (not the true reason). Specifically, the Court of Appeals found that Barthelus had consistently received positive performance reviews and only received an unfavorable evaluation after his complaint to HR about unequal treatment because of his Haitian accent. The Court noted that the District Court Judge disregarded the conclusions of an independent information technology audit by Tech Search America (TSA) that the IT services provided under Barthelus direction were “above par and secure,” and the numerous positive past performance evaluations he had received over an 8 year period.  The Court ruled "we conclude that material issues of fact are present regarding pretext especially when Barthslus's performance reviews are considered in light of the TSA audits.” The case is Barthelus v G4S Gov’t Solutions.

Common Sense Counsel: if you liked the ghost of Christmas past in the Scrooge Christmas Carol, discovering a series of positive performance reviews after you have discharged an employee is a very similar experience. Usually comes in conjunction with preparation of your Statement of Position to the EEOC Charge and can scare the daylights out of you. Follow these four steps and you will not have to face your company’s performance evaluation ghost: 1) Do It Regularly – recognizing good or poor work should be done daily and a written performance evaluation should never be a surprise; 2) Be Honest – giving a satisfactory evaluation that is untruthful is an employment litigation landmine; 3) Train Supervisors - how to be great coaches during the performance meeting and give accurate and truthful evaluations, signed by the employee, is your best risk reduction strategy; and 4) Let Them Go - retaining the constant poor performer, or disruptive employee, after the second poor evaluation when the employee has already been warned in writing that termination is on the table, can be a haunting mistake.


Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at alabamaatwork.com.