Dive Brief:
- A former laboratory technician for Exxon Mobil failed to show that the employer fired her on the basis of her sex in part because she lacked evidence to counter the company’s claim that its decision hinged upon her poor performance, the 7th U.S. Circuit Court of Appeals held in a Monday decision.
- The plaintiff’s first and only performance review placed her in the lowest-ranked performance category. Exxon gave her the option of either taking a separation agreement or resigning immediately. She chose the latter, per court documents, and sued the company for discrimination under Title VII of the 1964 Civil Rights Act.
- The plaintiff moved for summary judgment, alleging Exxon erred in its evaluation process and treated her less favorably than two male co-workers who held the same title, work location and managers. A district court ruled in favor of Exxon and the 7th Circuit affirmed, finding that the two male employees were not proper comparators and that the plaintiff had not shown that Exxon’s decision was pretextual.
Dive Insight:
In its decision, the 7th Circuit repeatedly referenced Exxon’s performance documentation of the plaintiff, at one point noting that she “did not fare well in comparison” to other employees in her cohort of “Management Assigned Category” workers, a category that included new hires with three or more years of relevant experience before joining Exxon.
The company’s policy dictated that MAC employees who received the lowest performance category rating be given the separation-agreement-or-resignation offer. The court noted that the plaintiff did not cite any evidence to show that her performance was comparable to other such employees. Instead, the plaintiff “was ranked last in that unchallenged process,” it said.
“Other than the fact that [the plaintiff] is a member of a protected class, there is no evidence in the record from which a reasonable juror could infer that she was terminated because of her sex,” the 7th Circuit wrote.
Employers have successfully used documentation as a defense against discrimination claims in the past. In 2019, for example, the 11th Circuit held that Lowe’s did not discriminate against a worker on the basis of his age or disability when it fired him following a series of investigations in response to complaints about the plaintiff from other employees.
Management-side attorneys have repeatedly stressed the importance of thorough documentation, including of performance issues, in defending against lawsuits. A speaker at SHRM’s 2024 annual conference told attendees that effective documentation covers a number of bases, including clear expectations of the employee, descriptions of needed adjustments, and detailed plans or action items, among other elements.
