The Performance Review is Often Exhibit #1

Jotting's of an Employer's Lawyer has a write up of a case out of Texas' Austin Court of Appeals from last month that drives home an important point. Often in an employment case...in fact more often than not...the employer's deposition or trial testimony regarding the plaintiff's poor job performance prior to termination does not jive with the written evaluations of the plaintiff given by the same employer prior to termination.

In Ancira Enterprises, Inc. v Fischer (Tx. App. - Austin 6/16/05), in upholding the jury's finding on liability and punitive damages, the court noted the following about the plaintiff's performance evaluations:

A performance review dated March 30, 1999 reflected that Fischer's "performance of duties" and "knowledge of duties" was "excellent"; that she had "good" punctuality, and a "very good" attitude. The review noted that Fischer was on the safety committee and "works well with other employees and strives to be a 'Team Player.'" It recommended that she continue with her current position, but "be available for consideration to a position of more responsibility and advancement within the company."

Jottings points out that "when the rationale for the termination and the performance appraisals diverge is when they become Plaintiff's Exhibit #1."