Even a seemingly objective performance evaluation process may not insulate an employer from claims by an employee that their termination was discriminatory. In a 2013 unpublished decision, Rochat v. L.E.K. Consulting, LLC, 83 Mass. App. Ct. 1108 (2013), the Appeals Court reviewed a Superior Court decision to dismiss gender discrimination claims made by a terminated employee against her former employer. The terminated employee, a second-year consultant with a previously promising career with the firm, earned a negative performance review from the supervisor of a project she worked on toward the end of her second year. That review led, ultimately, to the termination of her employment. Until the last few months of her employment, the employee had generally positive reviews every six months during her tenure with the company and consistently received praise for her work ethic and enthusiastic attitude. She claimed that the decision to terminate her was the product of gender bias.
The employer moved to dismiss the employee's claim, maintaining it met its burden of demonstrating that it had fired her for legitimate, non-discriminatory reasons. The employer pointed out that the review process that led to the termination was comprehensive and consensus-based and that it raised sufficient concerns about her ability to perform her job professionally to justify termination. Consequently, the burden shifted back to the employee to prove the employer's stated reasons for terminating her were pretexts and the decision to fire her was based upon her gender. On the record before it, the Superior Court concluded the employee would be unable to meet that burden.
The Appeals Court reversed, holding that the Superior Court had usurped the jury's fact-finding role. It pointed to multiple factors the employee had raised and the Superior Court disregarded, such as the fact that the employer had only one female partner and no women at the management level when the employee was terminated and that other male consultants were apparently treated materially better than she was. The employee also offered evidence that her supervisor - who participated in the decision to terminate her and could have materially influenced the opinions of others who participated in the decision - "acted in a belittling manner toward her based on her gender, including making a sexist remark to her."
The Appeals Court concluded that it was up to the jury to decide the import of the evidence the employee offered and that a jury could have reasonably concluded the supervisor's comment and behavior "revealed a gender biased attitude that negatively affected... the evaluation" that played a critical role leading to her termination. As a result, the judgment in the employer's favor was reversed and the case remanded back to the Superior Court for trial.