The Pretext Element: Self-Evaluations
In Washington State, may a plaintiff use self-evaluations, alone, to establish pretext when pursing a wrongful termination claim under the Washington Law Against Discrimination (WLAD)? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding.
SUBJECTIVE EVALUATIONS BY EMPLOYERS -- LEGITIMATE WHEN JOB REQUIRES EMPLOYEE TO EXERCISE PROFESSIONAL JUDGMENT
Generally, "[s]ubjective judgments by employers are not per se illegal, nor do they always lack legitimacy." Chen v. State, 86 Wn.App. 183, 190 (Div. 2 1997), review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997) (citing MACK A. PLAYER, EMPLOYMENT DISCRIMINATION LAW 336 (1988)). "Subjective evaluations of performance are legitimate when the job requires the employee to exercise professional judgment." Id. at 190-91.
EMPLOYEE SELF-EVALUATIONS, ALONE, ARE INSUFFICIENT TO ESTABLISH GENUINE ISSUES OF MATERIAL FACT
However, an "employee's assertion of good performance to contradict the employer's assertion of poor performance does not give rise to a reasonable inference of discrimination." Chen, 86 Wn.App. at 191. Self-evaluations are not enough to establish genuine issues of material fact. See id. (citing Parsons v. St. Joseph's Hosp., 70 Wash.App. 804, 811, 856 P.2d 702 (1993)). Thus, an employee's declaration of good performance does not establish a "reasonable inference of discrimination to contradict [a] legitimate, nondiscriminatory reason for the termination based on poor performance." See id. (citing Parsons, 70 Wash.App. at 811, 856 P.2d 702). In other words, an employee's declaration of good performance, alone, to counter allegations of poor performance is insufficient to establish pretext for purposes of a wrongful termination claim under the WLAD.
EXAMPLE: CHEN v. STATE
For example, in Chen v. State, 86 Wn.App. 183, 191 (Div. 2 1997), review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997), "Western State Hospital dismissed Dr. Hsi Chen after a six-month probationary period, citing poor performance." Id. (emphasis added). Chen sued, alleging, inter alia, discrimination in violation of the Washington Law Against Discrimination, RCW 49.60. "The trial court granted summary judgment for the State, and Chen appeal[ed]." Chen, 86 Wn.App. at 191.
Before the Washington State Court of Appeals, Division 2, Chen attempted to "establish an inference of discrimination[ ] [by pointing] … to his own self-evaluations and his explanations of the State's examples of poor work performance." Id. (emphasis added). However, the Court determined that Chen's self-evaluations were "insufficient to raise genuine issues of material fact." Id. (internal citation omitted). "Furthermore, Chen's explanations for the cited examples of poor performance do not create an inference of discrimination." Id. The Court reasoned:
Chen does not challenge the facts of the staff complaints used by the State to evaluate his performance. Rather, he seeks either to minimize their importance or offers explanations that shift responsibility from him, e.g., one of the transferring staff had a reputation for being difficult.
Id. Accordingly, Division 2 held, in part: "Because Chen failed to produce evidence that the State's reason for dismissing him was false or a mere pretext, we affirm." Id. at 185-86.
READ MORE OF OUR RELATED ARTICLES 🔍
➣ For broader coverage of the McDonnell Douglas burden-shifting framework, read our article entitled: The McDonnell Douglas Burden-Shifting Framework.
➣ To see a Washington State court analyze an actual lawsuit for pretext using both methods described above, read our article entitled: Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2*.
➣ To learn about considerations and limitations in establishing the pretext element, read our article entitled: The Pretext Element: Six Limitations.
(*NOTE: The link will take the reader to our external website: Court Slips.)
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If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group; please see our DISCLAIMER.
–gw
