By Joseph M. Cooper and Meghan E. Siket

    Massachusetts employment lawIt can be difficult to maintain a consistent performance evaluation process that clearly conveys constructive criticism and negative feedback when it’s merited. A recent decision from the U.S. Court of Appeals for the 1st Circuit— which covers Maine, Massachusetts, New Hampshire, and Rhode Island—affirmed the dismissal of an employee’s race discrimination claim, based largely on the employer’s clear and consistent performance evaluations of him and others with whom he sought to be compared.

    Predominantly negative performance evaluations

    John H. Ray, who is black, joined the law firm of Ropes & Gray as a fifth-year associate in 2005 after working at two other firms in New York and Chicago. At the time, the firm followed an “up or out policy,” meaning senior associates who weren’t on track to advance toward a partner or counsel position were asked to leave the firm. In 2008, the firm informed Ray that he wouldn’t make partner and gave him 6 months to leave.

    Partnership decisions were made by the firm’s nine-member policy committee, and selection was competitive. Although legal skills and analysis were important, the committee also considered things like management ability, collegiality, and the needs of particular practice groups. If it became clear after an associate’s eighth year that he wouldn’t make partner, the firm asked the associate to leave the firm.

    Ray received generally positive evaluations during his first year at the firm, but his evaluations in subsequent years were predominantly negative. In late 2008, the firm offered him a 6-month severance package through June 2009.

    After the firm denied his request for an indefinite extension to his severance period, Ray filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that the firm discriminated against him based on his race when it decided not to advance him to partner. He also alleged that the firm’s decision constituted retaliation for complaints he had made to management about racially charged remarks by two partners.

    In August 2011, Ray filed a lawsuit in Massachusetts district court alleging, among other claims, discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and analogous Massachusetts statutes. He alleged that the firm’s decision not to advance him to partner was based on race discrimination and retaliation for his earlier complaints about discrimination to management.

    Negative evaluations negate race claims

    The district court dismissed Ray’s discrimination claim, holding that he hadn’t provided plausible evidence that his negative evaluations or the policy committee’s decision not to promote him to partner were influenced by racial animus. Ray appealed to the 1st Circuit, which examined whether (1) the firm’s articulated reasons for not promoting him were pretextual and (2) whether the real reason for the firm’s actions was discriminatory animus.

    Like the district court, the 1st Circuit found no basis to infer that there was a discriminatory motive behind the firm’s actions. The court examined performance evaluations of white associates who had been promoted to partner, among other evidence. Although their reviews were not uniformly positive, the negative criticisms in the white associates’ evaluations were significantly less extreme and less numerous than those in Ray’s evaluations.

    Ray’s negative evaluations also contained consistent “refrains that he had insulted his co-workers, demeaned junior associates he worked with, and passed off work to others.” Ray v. Ropes & Gray LLP,2015 U.S. App. LEXIS 15026 (1st Cir. Mass., Aug. 25, 2015).

    Bottom line

    The firm’s performance evaluation and promotion processes, while highly competitive, were clearly defined and consistently applied. The firm was able to justify its partnership decisions with supporting documentation that, while critical of Ray, contained no evidence implying race or discriminatory animus. As a result, the 1st Circuit upheld the district court’s dismissal of the discrimination claim.

    This decision illustrates the importance of maintaining consistency in your performance evaluation process and using constructive criticism and negative feedback when it’s merited. From an internal standpoint, it’s important to clearly convey to employees that they need to improve their performance to meet your expectations while emphasizing the disciplinary consequences of continued problems. From a litigation perspective, clear documentation of performance issues can mean the difference between success and disappointment in the courtroom.

    Meghan E. Siket (msiket@whelankindersiket.com) is a Partner at Whelan, Kinder & Siket LLP and an editor of Rhode Island Employment Law Letter.